exv10w18xfy



 






EXHIBIT
10.18(f)


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




 FIFTH AMENDMENT TO LEASE



(South SF 10)




     THIS FIFTH 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”).



RECITALS:




     A. Landlord (then known as Syufy Enterprises (“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 San Francisco,
California.



     B. The Original Lease has been previously amended by that certain (i) First Amendment to Lease
dated as of October 31, 1996 (the “First Amendment”), (ii) Second Amendment to Lease dated as of
September 1, 2000 (the “Second Amendment”), (iii) Third Amendment to Lease dated as of April 15,
2005 (the “Third Amendment”), and (iv) Fourth Amendment to Lease dated as of September 29, 2005
(the “Fourth 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



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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 and
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 San
Francisco typically are open and operating. The term “Excused Closure” shall mean (i) periods of
construction, alterations, renovation, remodeling and repair of the Leased Premises undertaken in
accordance with this Lease (including repairs and restoration following damage or destruction due
to fire or other casualty) provided that Tenant (A) prosecutes such work to completion with
reasonable diligence, (B) exercises its reasonable efforts to minimize the length of time of such
closure, and (C) exercises its reasonable efforts to limit the number of motion picture screens at
the Premises that are not operated due to such closure; (ii) periods when Tenant cannot practicably
operate its business in the Premises as a consequence of force majeure; and (iii) additional
periods, not to exceed four (4) days in any Lease Year, when Tenant in its sole discretion elects
not to operate its business in the Leased Premises.



     5. Self-Insurance of Property/Casualty Risks. Notwithstanding anything to the
contrary set forth in the Lease, during any period in which Tenant maintains a Net Worth (as
defined below) of at least One Hundred Million Dollars ($100,000,000.00), Tenant may self insure
the so-called “physical property damage insurance” otherwise required to be maintained by Tenant
pursuant to the Lease. As used herein, the “Net Worth” of Tenant at any given time shall mean an
amount equal to the sum of (A) the product of (1) Tenant’s so-called EBITDA (i.e., earnings before
interest, income taxes, depreciation and amortization), calculated in accordance with commercially
reasonable past practice preceding the Effective Date by Tenant’s parent corporation, over the
12-month period immediately preceding the time of measurement, multiplied by (2) eight (8), plus
(B) the amount of cash and cash equivalents held by Tenant on the most recent anniversary of
Tenant’s annual insurance renewal date, minus (C) the amount of outstanding funded debt of Tenant
on such determination date.



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     6. Damage and Destruction — Repairs by Tenant. Notwithstanding anything to the
contrary contained in the Lease, the following shall apply to repairs and restoration upon damage
or destruction:




     (A) Tenant’s Obligation to Repair. If the Leased Premises are damaged or
destroyed by any peril after the Commencement Date of this Lease, then Tenant shall repair
the damage and restore the Leased Premises in accordance with this 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) Damage in Excess of 20%. If the Leased Premises are damaged or destroyed
by fire or other casualty which occurs after the Effective Date hereof, 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.



     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




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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-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.



     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)



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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 Premises, 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





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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 or changes that Tenant
undertakes. Alterations, changes and improvements shall be performed in a first-class manner and
must comply with all laws, zoning regulations and ordinances, and any conditions on permits issued
pursuant thereto. If it is necessary in Tenant’s reasonable judgment to close any of the motion
picture screens during the period in which any of Tenant’s work permitted hereunder is performed,
said closure(s) shall be effected only in accordance with the provisions governing an “Excused
Closure”, as that term is defined in Section 4 of this Amendment.




     13. Rooftop Equipment and Access. Tenant shall have the exclusive right to install,
operate, repair, replace and maintain satellite dishes and/or other communication transmission
devices (collectively “Rooftop Equipment”) on the roof of the theatre necessary or appropriate to
accept any transmission of signals to the theatre for all permitted uses, including without
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:








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	 	(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 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 and/or an “art house”
theatre). In no event shall Tenant be permitted to operate the Leased Premises as a so-called
“second run” theatre complex or a so-called “adult” theater complex.



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     16. Removal of Equipment, Surrender and Demolition. Upon the expiration of the Term
or earlier termination of the Lease, and provided Tenant is not in default under the Lease beyond
applicable notice and cure periods, and said earlier termination is not due to Tenant’s default
under the Lease, then for a period extending forty-five (45) days beyond the date of said
expiration or termination, Tenant shall be permitted to remove any and all furniture, fixtures and
equipment owned and installed by Tenant in, on or to the Leased Premises. Such removal shall be:
(a) at Tenant’s sole cost and expense; (b) conducted in such manner that no liens or claims shall
arise or exist in connection therewith; (c) conducted in a manner to avoid unreasonable
interference with the activities of Landlord and subsequent tenants or occupants upon the Leased
Premises and Tenant shall repair all damages caused by such removal.



     Upon surrender of the Leased Premises by Tenant and removal of its equipment pursuant to the
terms of the Lease and this Amendment, Landlord shall be responsible for the cost of any
demolition of the Leased Premises and site grading and restoration as a result. Such demolition
shall be undertaken in Landlord’s sole discretion and at such times, manner and upon such events
as Landlord solely shall determine.



     17. Early Termination — Opening of Nearby Theatre. As of the Effective Date hereof,
Tenant is the lessee under a lease agreement (the “Nearby Theatre Lease”) for the motion picture
theatre complex located or to be located at the proposed “***” in San Bruno,
California (the “Nearby Theatre”). As of the date the Nearby Theater opens for business to the
public, the Lease shall be terminated.



     18. Early Termination — Cancellation of Nearby Theatre Lease. In the event, during
any consecutive twelve (12) calendar month period from the Effective Date (the “Test Period”), the
Nearby Theatre is not constructed and open for business to the general public, and if the Theatre
Level Cash Flow (“TLCF”), as defined in Exhibit “A-3” hereto, for the Leased Premises over
the Test Period is less than ***, then Tenant shall have the right, to be exercised by written
notice to Landlord at any time when the TLCF for the most current trailing twelve (12) month
period was *** or forty-five (45) days after the expiration of such Test Period, to terminate
the Lease as provided below in this Section 18; provided, however, that Tenant shall have
concurrently or previously terminated the Nearby Theatre Lease; and provided further, that
such notice and Tenant’s right to terminate the Lease for the applicable Test Period shall be void
and ineffective unless Tenant shall have satisfied the Operating Condition (defined above)
continuously throughout the applicable Test Period subject to Excused Closure. Further, in order
to be effective, Tenant’s notice to Landlord under this Section 18 shall include a written
“certification to Landlord from Tenant’s chief financial officer or controller confirming that the
TLCF for the Test Period calculated in accordance with Tenant’s normal accounting practices 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 of the
Test Period.



     19. Restrictive Covenant. Landlord covenants and agrees that if, upon the termination
of the Lease for any reason, other than the default of Tenant, Tenant or an affiliate of Tenant is
leasing and operating a Nearby Theater pursuant to the Nearby Theater Lease, then no portion of the
Entire Premises including the Leased Premises shall be used or operated as a motion picture theater
complex prior to the date which is the first to occur of (i) 15 years from




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the date that the Nearby Theater is or was first open to the general public and operated as a
motion picture theater complex or (ii) the termination or expiration of the Nearby Theater Lease or
(iii) the Nearby Theater ceasing to be open to the public and operating as a first-run motion
picture theater complex, for reasons other than Excused Closures for a continuous period of
eighteen (18) months or more. The terms and provisions of the 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 request by Tenant a restrictive
covenant in form appropriate for recording containing the restrictions contained herein. Tenant
shall be responsible for the costs of all such recording fees.




     20. California Remedies. Landlord’s remedies upon a default under the Lease shall
include, without limitation, the following:



Even though Tenant has breached the Lease and/or abandoned the Premises, this Lease shall
continue in effect for so long as Landlord does not terminate Tenant’s right to possession,
and Landlord may enforce all of its rights and remedies under this Lease, including (but
without limitation) the right to recover Rent as it becomes due. Landlord has the remedy
described in Section 1951.4 of the Civil Code of the State of California or any successor
code section (Landlord may continue the Lease in effect after Tenant’s breach and
abandonment and recover rent as it becomes due, if Tenant has the right to sublet or
assign, subject only to reasonable limitations). Acts of maintenance, preservation or
efforts to lease the Premises or the appointment of receiver upon application of Landlord
to protect Landlord’s interest under this Lease shall not constitute an election to
terminate Tenant’s right to possession.



     21. Termination of Lease and Lessee’s Right to Possession. Section 15.02(C) of the
Lease shall be deemed deleted in its entirety and replaced with the following:



     “If an event of default occurs, Landlord shall have the right, with or without notice or
demand, immediately (after expiration of the applicable grace periods) to terminate this Lease,
and at any time thereafter recover possession of the Premises or any part thereof and expel and
remove therefrom Tenant and any other person occupying the same, by any lawful means, and again
repossess and enjoy the Premises without prejudice to any of the remedies that Landlord may have
under this Lease, or at law or equity by reason of Tenant’s default or of such termination. Should
Landlord terminate this Lease pursuant to foregoing, Landlord shall have all 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;



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     (3) the worth at the time of award of the amount by which the unpaid Rent for the
balance of the Term after the time of award exceeds the amount of such Rent loss that the
Tenant proves could be reasonably avoided;




     (4) any other amount, and court costs, necessary to compensate Landlord for all the
detriment proximately caused by Tenant’s failure to perform its obligations under this Lease
or which, in the ordinary course of things, would be likely to result therefrom; and




     (5) for any other sums due.”



     22. Notices. The notices provisions of the Lease, as the case may be, shall be
deemed deleted in their entirety and replaced with the following:




	 	(a)	 	Except as otherwise expressly and specifically in this Lease provided, a 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.






10









 








     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 94901
	 

	 	Attention: David Sickle, Esq.
	 
	 	 
	To Tenant:

	 	Century Theatres, Inc.
	 

	 	c/o Cinemark, Inc.
	 

	 	3900 Dallas Parkway
	 

	 	Suite 500
	 

	 	Piano, 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.



     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 Second 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 Third Amendment and the Fourth
Amendment are hereby deemed to be void ab initio — it being the intent of the parties hereto that
this Amendment shall supersede such Third Amendment and Fourth 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




11









 







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]




12









 





     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