Circuit City 2005 Annual Report Download - page 78

any rights each may have against the other on account of any loss or damage occasioned to Landlord or Tenant, as the
case may be, their respective property, the Demised Premises, its contents or to the other portions of the Building,
arising from any risk covered by “Special Form” fire and extended coverage insurance of the type and amount required
to be carried hereunder, provided that such waiver does not invalidate such policies or prohibit recovery thereunder.
The parties hereto shall cause their respective insurance companies insuring the property of either Landlord or Tenant
against any such loss, to waive any right of subrogation that such insurers may have against Landlord or Tenant, as the
case may be.
9. Utilities . During the Term, Tenant shall promptly pay as billed to Tenant all rents and charges for water and
sewer services and all costs and charges for gas, steam, electricity, fuel, light, power, telephone, heat and any other
utility or service used or consumed in or servicing the Demised Premises and all other costs and expenses involved in
the care, management and use thereof as charged by the applicable utility companies. All such utilities, except for
sewer and water, shall be separately metered and billed to Tenant, and Tenant shall establish an account with the utility
provider with respect to each such separately metered utility. Sewer and water shall not be separately metered, and shall
be billed to Tenant by Landlord, at Landlord’s actual cost, in an amount equal to a reasonable estimation of such
utilities actually used by Tenant. Tenant’s obligation for payment of all utilities shall commence on the earlier of the
Lease Commencement Date or the date of Tenant’s actual occupancy of all or any portion of the Demised Premises,
including any period of occupancy prior to the Lease Commencement Date, regardless of whether or not Tenant
conducts business operations during such period of occupancy. In the event Tenant’s use of any utility not separately
metered is in excess of the average use by other tenants, Landlord shall have the right to install a meter for such utility,
at Tenant’s expense, and bill Tenant for Tenant’s actual use. If Tenant fails to pay any utility bills or charges, Landlord
may, at its option and upon reasonable notice to Tenant, pay the same and in such event, the amount of such payment,
together with interest thereon at the Interest Rate as defined in Section 32 from the date of such payment by Landlord,
will be added to Tenant’s next payment due as Additional Rent.
10. Maintenance and Repairs .
(a) Tenant shall, at its own cost and expense, maintain in good condition and repair and replace as necessary
the interior of the Demised Premises, including but not limited to the heating, air conditioning and ventilation systems,
glass, windows and doors, sprinkler, all plumbing and sewage systems, fixtures, interior walls, floors (including floor
slabs except as provided for in Section 10(b) below), ceilings, storefronts, plate glass, skylights, all electrical facilities
and equipment including, without limitation, lighting fixtures, lamps, fans and any exhaust equipment and systems,
electrical motors, and all other appliances and equipment (including, without limitation, dock levelers, dock shelters,
dock seals and dock lighting) of every kind and nature located in, upon or about the Demised Premises, except as to
such maintenance, repair and replacement as is the obligation of Landlord pursuant to Section 10(b). During the Term,
Tenant shall maintain in full force and effect a service contract for the maintenance of the heating, ventilation and air
conditioning systems with an entity reasonably acceptable to Landlord; provided, however, that during the one year
period following the Lease Commencement Date, such service contract shall be maintained with the contractor that
installed the heating, ventilation and air conditioning systems and shall provide for at least two preventive maintenance
service calls during such one year period. Tenant shall deliver to Landlord (i) a copy of said service contract prior to the
Lease Commencement Date, and (ii) thereafter, a copy of a renewal or substitute service contract within thirty (30)
days prior to the expiration of the existing service contract. Tenant’s obligation shall exclude any maintenance, repair
and replacement required because of the act or negligence of Landlord, its employees, contractors or agents, which
shall be the responsibility of Landlord.
(b) Landlord shall, at its own cost and expense, maintain in good condition and repair the foundation
(beneath the floor slab except as hereinafter set forth), the roof and structural frame of the Building. In addition,
Landlord shall be responsible for damage to the floor slab caused by defect in the foundation or structural frame of the
Building, specifically excluding, however, damage caused by the use of the floor or Demised Premises by Tenant or
any Tenant’s Affiliates. Landlord’s obligation shall exclude the cost of any maintenance or repair required because of
the act or negligence of Tenant or any of Tenant’s subsidiaries or affiliates, or any of Tenant’s or such subsidiaries’ or
affiliates’ agents, contractors, employees, licensees or invitees (collectively, “Tenant’s Affiliates”), the cost of which
shall be the responsibility of Tenant. Landlord shall never have any obligation to repair, maintain or replace, pursuant
to this subsection 10(b) or any other provision of this Lease, any Tenant’s Change (as defined in Section 18 hereof).
(c) Unless the same is caused solely by the negligent action or inaction of Landlord, its employees or agents,