Circuit City 2005 Annual Report Download - page 129

When each component of the Final Expansion Plans and Specifications has been approved by Tenant, Landlord
and Tenant shall affix their respective signatures or initials to a schedule describing each such approved component.
Such approved components shall constitute all or a portion of the Final Expansion Plans and Specifications and shall be
deemed to become attached to and made a part of this Lease as Exhibit H .
Section 2A.3 Expansion Commencement Date; Delivery of Expansion Improvements.
(a) Expansion Commencement Date . The “Expansion Commencement Date” shall be the date on which the
Expansion Improvements are Substantially Completed. For purposes of this Amendment, the Expansion Improvements
shall be deemed to be “Substantially Completed” (or “Substantially Complete” or “Substantial Completion”) on the
date the requisite governmental authority having jurisdiction has issued with respect thereto a temporary certificate of
occupancy. Notwithstanding the foregoing, if Lender’s Architect, or if none, the Expansion Architect, has certified in
writing that, as of a date certain set forth in such written certification, the Expansion Improvements would have been
Substantially Completed but for a Tenant Extension, then the Expansion Improvements shall nevertheless be deemed to
be Substantially Completed for purposes of determining the Expansion Commencement Date on the date certain set
forth in Lender’s Architect’s or the Expansion Architect’s aforesaid certification. Section 2.5(b) of the Lease is hereby
amended to (A) add the following items to the definition of Tenant Extension: “. . . (D) Tenant’s failure to pay for any
Change Order when due, or (E) any Change Order related to a Soil Conditions Adjustment (as defined in Section 2A.5
hereinafter). . .”; and (B) add the following items to the definition of Permitted Delays: “. . . (vi) unusually severe
weather; (vii) delays in obtaining building permits; or (viii) other acts or occurrences beyond the reasonable control of
Expansion Contractor, or its employees, agents, contractors, subcontractors, sub-subcontractors or representatives. . .”
Landlord shall deliver possession of the Expansion Improvements to Tenant on the Expansion Commencement Date.
(b) Scheduled Expansion Completion Date . Subject to the conditions herein set forth, the anticipated
Expansion Commencement Date will be August 18, 2006 (“Scheduled Expansion Completion Date”); provided,
however, that Landlord shall use commercially reasonable efforts to cause McShane Construction Corporation
(“Expansion Contractor”) (without the incurrence of overtime or similar type charges unless requested by Tenant in
writing and paid for by Tenant in advance at Tenant’
s sole cost and expense) to achieve the Expansion Commencement
Date as soon as practicable.
Section 2A.4 Scope of Work. Weather permitting, promptly following the approval of the Final Expansion
Plans and Specifications, Landlord shall cause to be furnished, at Landlord’s sole cost and expense, all the material,
labor and equipment necessary for the commencement and completion of construction of the Expansion Improvements.
Landlord shall cause Expansion Contractor to construct the Expansion Improvements in a good and workmanlike
manner in substantial accordance with the Final Expansion Plans and Specifications. In the event that any materials
specified in the Final Expansion Plans and Specifications are not reasonably available to Landlord or Expansion
Contractor, Landlord and Expansion Contractor reserve the right to substitute materials of higher or equal quality
provided Tenant gives its approval, which approval shall not be unreasonably withheld and which shall be deemed
given if Tenant does not disapprove within three (3) days after receipt of a substitution notification.
Landlord acknowledges and agrees that Landlord will bear certain responsibility, as described in this Section
2A.4, for assuring that the Final Expansion Plans and Specifications will be in compliance with the ADA. (For
purposes of this Section 2A.4, the term “ADA” shall mean the ADA as theretofore amended and, with respect to the
rules and regulations thereunder, as theretofore issued.) The preparation of the Preliminary Expansion Plans and
Specifications by or for Landlord will be based on, among other things, Expansion Architect’s knowledge of the ADA,
as the ADA may then be customarily implemented in “non-user specific” warehouse/distribution/office facilities
constructed in the Naperville/Aurora, Illinois commercial marketplace, as well as on the Preliminary Expansion Plans
and Specifications. As an integral part of its obligations during the review, submittal and revision procedure set forth
herein with respect to the Final Expansion Plans and Specifications, Tenant shall inform Landlord of any and all
necessary changes thereto in order for the Demised Premises to be in compliance the ADA, with respect to Tenant’s
intended use of the Demised Premises. Landlord shall thereafter cause to be made any and all such changes to the Final
Expansion Plans and Specifications of which Tenant informs it. However, anything in this Lease to the contrary
notwithstanding, any and all such changes in the Final Expansion Plans and Specifications shall automatically and
conclusively be deemed to be a Change Order to which Tenant has agreed.
Section 2A.5 Expansion Change Orders.
Tenant shall be allowed to request (and shall be deemed to have