Circuit City 2005 Annual Report Download - page 86

notice; or
(ii) Terminate this Lease as provided in Section 22(b)(i) hereof and recover from Tenant all damages
Landlord may incur by reason of Tenant’s default, including, without limitation, an amount which, at the date of such
termination, is calculated as follows: (1) the value of the excess, if any, of (A) the Base Rent, Additional Rent and all
other sums which would have been payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the Expiration Date had this Lease not been terminated (the “Remaining
Term”), over (B) the aggregate reasonable rental value of the Demised Premises for the Remaining Term (which
excess, if any shall be discounted to present value at the “Treasury Yield” as defined below for the Remaining Term);
plus (2) the costs of recovering possession of the Demised Premises and all other expenses incurred by Landlord due to
Tenant’s default, including, without limitation, reasonable attorney’s fees; plus (3) the unpaid Base Rent and
Additional Rent earned as of the date of termination plus any interest and late fees due hereunder, plus other sums of
money and damages owing on the date of termination by Tenant to Landlord under this Lease or in connection with the
Demised Premises. The amount as calculated above shall be deemed immediately due and payable. The payment of the
amount calculated in subparagraph (ii)(1) shall not be deemed a penalty but shall merely constitute payment of
liquidated damages, it being understood and acknowledged by Landlord and Tenant that actual damages to Landlord
are extremely difficult, if not impossible, to ascertain. “Treasury Yield” shall mean the rate of return in percent per
annum of Treasury Constant Maturities for the length of time specified as published in document H.15(519) (presently
published by the Board of Governors of the U.S. Federal Reserve System titled “Federal Reserve Statistical Release”)
for the calendar week immediately preceding the calendar week in which the termination occurs. If the rate of return of
Treasury Constant Maturities for the calendar week in question is not published on or before the business day
preceding the date of the Treasury Yield in question is to become effective, then the Treasury Yield shall be based upon
the rate of return of Treasury Constant Maturities for the length of time specified for the most recent calendar week for
which such publication has occurred. If no rate of return for Treasury Constant Maturities is published for the specific
length of time specified, the Treasury Yield for such length of time shall be the weighted average of the rates of return
of Treasury Constant Maturities most nearly corresponding to the length of the applicable period specified. If the
publishing of the rate of return of Treasury Constant Maturities is ever discontinued, then the Treasury Yield shall be
based upon the index which is published by the Board of Governors of the U.S. Federal Reserve System in replacement
thereof or, if no such replacement index is published, the index which, in Landlord’s reasonable determination, most
nearly corresponds to the rate of return of Treasury Constant Maturities. In determining the aggregate reasonable rental
value pursuant to subparagraph (ii)(1)(B) above, the parties hereby agree that, at the time Landlord seeks to enforce this
remedy, all relevant factors should be considered, including, but not limited to, (a) the length of time remaining in the
Remaining Term, (b) the then current market conditions in the general area in which the Building is located, (c) the
likelihood of reletting the Demised Premises for a period of time equal to the remainder of the Term, (d) the net
effective rental rates then being obtained by landlords for similar type space of similar size in similar type buildings in
the general area in which the Building is located, (e) the vacancy levels in the general area in which the Building is
located, (f) current levels of new construction that will be completed during the Remaining Term and how this
construction will likely affect vacancy rates and rental rates and (g) inflation; or
(iii) Without terminating this Lease, declare immediately due and payable the sum of the following: (1)
the present value (calculated using the “Treasury Yield”) of all Base Rent and Additional Rent due and coming due
under this Lease for the entire Remaining Term (as if by the terms of this Lease they were payable in advance), plus (2)
the cost of recovering and reletting the Demised Premises and all other expenses incurred by Landlord in connection
with Tenant’
s default, plus (3) any unpaid Base Rent, Additional Rent and other rentals, charges, assessments and other
sums owing by Tenant to Landlord under this Lease or in connection with the Demised Premises as of the date this
provision is invoked by Landlord, plus (4) interest on all such amounts from the date due at the Interest Rate, and
Landlord may immediately proceed to distrain, collect, or bring action for such sum, or may file a proof of claim in any
bankruptcy or insolvency proceedings to enforce payment thereof; provided, however, that such payment shall not be
deemed a penalty or liquidated damages, but shall merely constitute payment in advance of all Base Rent and
Additional Rent payable hereunder throughout the Term, and provided further, however, that upon Landlord receiving
such payment, Tenant shall be entitled to receive from Landlord all rents received by Landlord from other assignees,
tenants and subtenants on account of said Demised Premises during the remainder of the Term (provided that the
monies to which Tenant shall so become entitled shall in no event exceed the entire amount actually paid by Tenant to
Landlord pursuant to this subparagraph (iii)), less all costs, expenses and attorneys’ fees of Landlord incurred but not
yet reimbursed by Tenant in connection with recovering and reletting the Demised Premises; or