exv10w11xey



 




EXHIBIT
10.11(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

(Laguna)




     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 December 1, 1995 (the “Original
Lease”), for certain premises located in Laguna, Elk Grove, 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.



 









 





     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
an validity of such Renewal Terms, the Initial Term of the Lease is hereby extended to and shall
expire on
***           and rather than ***          Renewal Terms of ***           each (as
provided in the Lease), Tenant shall have the option to extend the Initial Term for ***          
consecutive Renewal Terms of ***          each, followed by ***          additional
and final Renewal Term of***          .



     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
Sacramento 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.



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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 Section, 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 subsection (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



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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 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-1”.



     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.



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     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:



5









 






	 	(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 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 theatre complex.
Tenant shall be required to complete all alterations, improvements and changes undertaken by
Tenant. 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.



6









 





     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.



     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:




	 	(i)	 	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.
	 
	 	(ii)	 	Landlord shall not lease, sell or use any space on Non-leased Premises or the
Contiguous Property for operating a motion picture theatre.
	 
	 	(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
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






7









 









	 	 	 	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.
	 
	 	(v)	 	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” theatre, a “second-run” theatre,
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.



     16. No Obligation To Continuously Operate. Notwithstanding anything to the
contrary in the Lease or otherwise, Landlord hereby acknowledges that Tenant shall not be
required to continuously operate and open for business in or from the Premises and any
election
by Tenant to cease operations at the Premises shall not constitute a default or breach of the
terms and conditions of the Lease.



     17. 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.




8









 








     18. ***     Rent Conversion and Early Termination.

     (a) As of the Effective Date hereof, the parties have been made aware of the
possibility that a new motion picture theatre complex may be developed and operated in the
*** located in South Sacramento, California (the
“Nearby Theatre”).



     (b) If the Nearby Theatre opens for business and thereafter during any consecutive
twelve (12) calendar month period (the “First Test Period”), the Theatre Level Cash Flow
(“TLCF”), as defined in Exhibit “A-3” hereto, for the Leased Premises over such First
Test
Period is less than ***, then upon notice from Tenant 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, the ***     Rent Conversion (defined below) will become effective;
provided, however, that such notice and Tenant’s right pursuant to the ***      Rent
Conversion as
provided in this subparagraph (b) shall be void and ineffective unless Tenant shall have
satisfied
the Operating Condition (defined in Section 3 above) throughout the First Test Period. In
order
to be effective, Tenant’s notice to Landlord under this subparagraph (b) shall include a
written
certification to Landlord from Tenant’s chief financial officer or controller confirming that
the
TLCF for the First Test Period is less than ***. Provided Tenant has satisfied the
aforesaid
conditions, then effective as of the first day of the first calendar month following
Landlord’s
receipt of Tenant’s notice as provided above and thereafter so long as Tenant continues to
satisfy
the Operating Condition, in lieu of Base Rent and Percentage Rent otherwise due under the
Lease (but not in lieu of Tenant’s share of Impositions 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 (the “***      Rent Conversion”). 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 applicable period, 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.



     (c) (i) If the***      Rent Conversion occurs and thereafter during any consecutive
twelve (12) calendar month period (the “Second Test Period”), the TLCF 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 Second Test Period, to terminate the Lease as provided
below in this subparagraph (c); provided, however, that such notice and Tenant’s right to
terminate the Lease as provided in this subparagraph (c) shall be void and ineffective unless
Tenant shall have satisfied the Operating Condition (defined above) continuously throughout the
Second Test Period. In order to be effective, Tenant’s notice to Landlord under this subparagraph
(c) shall include a written certification to Landlord from Tenant’s chief financial officer or
controller that the TLCF for the Second 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 expiration of the termination notice.




9









 








     (ii) If the***      Rent Conversion occurs, and if at anytime thereafter, 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) ***, or
(2) Landlord waives its right to terminate this Lease pursuant to Section 18(d) 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 18(d) below will be immediately reinstated (notwithstanding the waiver pursuant to clause
(2) above, if applicable).



Notwithstanding anything to the contrary set forth in the Lease, including Section 16 above, if
Tenant elects to terminate this Lease pursuant to this Section 17 and Landlord demolishes the
theatre building of the Leased Premise within twelve (12) months after the date of termination,
then Tenant shall reimburse Landlord for the actual out-of-pocket costs incurred by Landlord to
demolish the theatre building (including, without limitation, the costs to remove from the Leased
Premises all building materials and debris and all footings, foundations, utility lines and other
underground installations that serve the Leased Premises and the costs to restore the surface of
the Premises to a graded and landscaped surface); provided, however, that Tenant’s reimbursement
obligations shall not exceed an amount equal to the product of *** psf multiplied by the ground
floor area of the theatre building (in square feet). Tenant shall pay the amount due under this
paragraph within thirty (30) days after receiving Landlord’s written demand for reimbursement,
which shall include reasonable supporting documentation confirming the costs so incurred by
Landlord. Tenant’s obligations under this paragraph shall expressly survive the termination of the
Lease.



     (d) If the***      Rent Conversion occurs, then Landlord shall have the right at anytime
thereafter to terminate this Lease upon not less than thirty (30) days’ prior written
notice to Tenant.



10









 





     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.”



11









 





     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 bill,
demand, statement, consent, notice or other communication (“notice”) which either party may
desire or be required to give to the other party shall be deemed sufficiently given or
rendered if
in writing, delivered personally to the party to be charged therewith or sent by certified
mail
(return receipt requested) or private express mail courier service (postage or delivery or
courier
fees fully prepaid) addressed to such party at the addresses set forth in subparagraph (c)
below
(including the addresses for copies of notices) and/or at such other address(es) as such party
shall
designate to the other party by notice given as herein provided. If Landlord is notified of
the
identity and address of Tenant’s Leasehold Mortgagee, Landlord shall give such party any
notice
served upon Tenant hereunder to the last known address of such Leasehold Mortgagee as
provided by Tenant to Landlord by certified mail or private express courier service. If Tenant
is
notified of the identity and address of Landlord’s mortgagee, Tenant shall give such mortgagee
any notice served upon Landlord hereunder to the last known address of such mortgagee as
provided by Landlord to Tenant, by certified mail or private express courier service.



     (b) Any notice given in accordance with the foregoing provisions of this Section shall
be deemed effective upon the earlier of (i) if the notice is personally delivered, the date
actually
received by intended recipient, (ii) if the notice is sent by certified mail, five (5) days
after the
same is mailed, or (iii) if the notice is sent by private overnight courier service (e.g.,
Federal
Express, DHL or similar courier), one (1) day after the same is delivered to or picked up by
such
courier. Rejection or refusal to accept a notice or the inability to deliver same because of
a changed address of which no notice was given shall be deemed to be a receipt of the notice
sent.
Notwithstanding any provision to the contrary contained in this Lease, no provision in this
Lease
shall preclude service of notices in accordance with Section 1162 of the California Code of
Civil
Procedure or any similar and/or successor code sections.



     (c) Addresses for Notices to Landlord and Tenant.




     Notices are to be delivered, mailed or couriered to the following address(es):



	 	 	 	 	 
	 

	 	To Landlord:
	 	Syufy Enterprises, L.P.
	 

	 	 	 	150 Pelican Way
	 

	 	 	 	San Rafael, California 94901
	 

	 	 	 	Attention: President
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Syufy Enterprises, L.P.
	 

	 	 	 	150 Pelican Way
	 

	 	 	 	San Rafael, California 94901
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	and a copy to:
	 	DLA Piper
	 

	 	 	 	203 North LaSalle
	 

	 	 	 	Suite 1900
	 

	 	 	 	Chicago, IL 60601
	 

	 	 	 	Attention: David Sickle, Esq.
	 
	 	 	 	 





12









 






	 	 	 	 	 
	 

	 	To Tenant:
	 	Century Theatres, Inc.
	 

	 	 	 	c/o Cinemark, Inc.
	 

	 	 	 	3900 Dallas Parkway
	 

	 	 	 	Suite 500
	 

	 	 	 	Plano, TX 75093
	 

	 	 	 	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.



     22. 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.



     23. 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. Paragraph B concerning Surrender in the
Second Amendment is hereby deleted in its entirety and of no further force and effect. The
Third Amendment is hereby deemed to be void ab initio — it being the intent of the parties
hereto that this Amendment shall supersede such Third Amendment in its entirety.



     24. 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.



13









 





     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/ Joseph Syufy	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Tenant:




CENTURY THEATRES, INC., a California corporation




	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Raymond W. Syufy	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 

















 







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.




 A3-1