EXHIBIT
10.28(b)
First
Amendment to Lease
This
First Amendment to Lease (this “Amendment”) dated April 15, 2005 is
executed by and between SYNM Properties, Inc., a New Mexico corporation (“Landlord”), and
Century Theatres, Inc., a California corporation (“Tenant”).
Witnesseth:
Whereas, Landlord and Century Theatres, Inc., a Delaware corporation (“Century
Theatres (DE)”), entered into a lease dated July 1,
1996 (the “Lease”) for a motion picture
building and related parking (the “Premises”) located at 4901 Pan American Freeway, Northeast,
Albuquerque, New Mexico; capitalized terms used but not defined herein shall have the meanings set
forth in the Lease; and
Whereas, Century Theatres, Inc., a California corporation, has succeeded
Century Theatres (DE), as Tenant; and
Whereas, Century Theatres, Inc., a California corporation, has assumed all
obligations of Century Theatres (DE), as set forth in the Lease; and
Whereas, the parties desire now to amend the Lease to revise and clarify
certain obligations between the parties, as hereinafter provided;
Now, Therefore, the parties hereto mutually agree that the Lease shall be amended as
follows:
A. Landlord’s Right to Develop
1. After the first sentence of Section 2.01(a) of the Lease, the following is hereby
inserted:
Tenant expressly agrees that Landlord shall have the right, but shall have no
obligation, to demolish, renovate, remodel, reconstruct or otherwise alter or
develop in any manner the Entire Premises or any portion thereof for any and
all uses beyond the Permitted Use (the “Development”) without Tenant’s
consent; provided, however, that the Development shall not materially
interfere with the Permitted Use or Tenant’s access to the Premises. In
addition to developing some or all of the Entire Premises that are outside of
the Building, Landlord’s Development rights set forth above shall include all
roof-top and other exterior communication and advertising rights on or about
the Entire Premises, including, without limitation, the exclusive right to
install, locate, maintain, use, replace and repair satellite dishes and other
roof-top communications equipment on the roof of the Building. In connection
with the foregoing, Tenant agrees that Tenant shall have no right to lease or
otherwise allow any third party to access or use the roof of the Building or
any portion of the Premises for any use other than the Permitted Use.
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2. Tenant hereby waives all claims of any nature whatsoever Tenant may now have
or may hereafter have against Landlord relating in any manner to, directly or indirectly, the
Development. Without limiting the generality of the foregoing, Landlord shall not be liable for any
damage to persons or property located in, on or about the Premises resulting from or in connection
with the Development, and Tenant waives and shall defend, indemnify and hold harmless Landlord from
any and all claims asserted by Tenant or Tenant’s officers, agents, employees, contractors,
licensees, invitees or guests arising from damage resulting from or in connection with the
Development (except to the extent such damage is caused by the willful act or gross negligence of
Landlord; provided, however, that Landlord shall not be liable for any consequential damages,
including, without limitation, any claim for loss of profit or business).
B. Surrender
Notwithstanding anything to the contrary in the Lease, upon the expiration or earlier
termination of the Lease and promptly following Tenant’s receipt of a cost estimate thereof from
Landlord, Tenant shall pay to Landlord an amount equal to the cost of demolishing the improvements
located on the Premises and removing all surface debris therefrom to Landlord’s reasonable
satisfaction, as such cost estimate is determined by Landlord in Landlord’s sole and absolute
discretion; provided, however, that Tenant may remove any or all of Tenant’s furniture, fixtures
and equipment (the “FF&E”) from the Premises, so long as such removal occurs within forty-five (45)
days after the Termination Date and Tenant repairs all extraordinary damage caused by such removal.
Except as set forth above, from and after the Termination Date, the parties shall have no further
rights under the Lease nor further obligations with respect to the Premises, except for any rights
or obligations which expressly survive the termination of the Lease in accordance with the
provisions thereof or at law.
C. Miscellaneous
1. This Amendment constitutes the entire understanding of the parties with respect to the
subject matter hereof and all prior agreements, representations, and understandings between the
parties, whether oral or written, are deemed null, all of the foregoing having been merged into
this Amendment.
2. This Amendment to Lease is hereby executed and shall be effective as of the date first
written above. All other conditions of the Lease shall remain in full force and effect.
3. This Amendment shall bind and inure to the benefit of Landlord and Tenant and their
respective legal representatives and successors and assigns.
4. Each party hereby specifically represents and warrants that its execution of this Amendment
has been duly authorized by all necessary corporate or other action, and that this Amendment when
fully signed and delivered shall constitute a binding agreement of such party, enforceable in
accordance with its terms.
5. The parties acknowledge that each party and/or its counsel have reviewed and revised this
Amendment and that no rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall be employed in the interpretation of this Amendment
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or any amendments or exhibits to this Amendment or any document executed and delivered by
either party in connection with this Amendment.
6. This Amendment may be executed in counterparts each of which shall be deemed an
original and all of which taken together shall constitute one and the same agreement.
[Signatures on following page]
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