Circuit City 2009 Annual Report Download - page 91

Real Estate Taxes for the Additional Retail Premises under this Section is referred to as the “Additional Retail Rent Commencement Date”
(e) Delivery of Additional Retail Premises . If Landlord is unable to deliver possession of the Additional Retail
Premises to Tenant on or before March 1, 2010 (the “Anticipated Completion Date”) because the Landlord’s Work (as defined below) has not
been Substantially Completed (as defined below), Tenant shall receive two days abatement of Annual Rent and additional rent for each day from
and after the Anticipated Completion Date until the Additional Retail Premises are Substantially Completed. In the event the Additional Retail
Premises are not Substantially Completed on or before June 1, 2010 (the “Outside Completion Date”),
Tenant shall have the right to terminate its
obligation to lease the Additional Retail Premises from Landlord under this Section 2 by giving Landlord thirty (30) days prior written notice of
such termination within fifteen (15) days following the Outside Completion Date, with time being of the essence. If Tenant timely exercises its
termination right under this Section 2(e), but the Additional Retail Premises are Substantially Completed within thirty (30) days of such notice,
then Tenant’s termination will be null and void and of no force or effect. If Tenant timely exercises its termination right under this Section 2(e),
and the Additional Retail Premises are not Substantially Completed within thirty (30) days of such notice, then such termination shall not affect
the Original Remaining Premises or any other terms or conditions under the Lease or this Amendment affecting the Original Remaining
Premises. If Tenant fails to deliver such termination to Landlord within such fifteen (15) day period. Tenant will be deemed to have waived its
termination right under this Section 2(e). Substantially Completed is defined as receipt of final inspections from the applicable governmental
authorities having jurisdiction over the permits issued for Landlord’s Work such that Tenant may take possession of the Additional Retail
Premises.
(f) Annual Rent for Additional Retail Premises . Tenant agrees to pay to Landlord, as Annual Rent for the Additional
Retail Premises, the amount of Five Hundred Six Thousand Four Hundred and 00/100 Dollars ($506,400.00) per annum (based on $20.00 per
rentable square foot of the Additional Retail Premises), payable in Monthly Installments of Rent equal to Forty Two Thousand Two Hundred
and 00/100 Dollars ($42,200.00). The Annual Rent for the Additional Retail Premises will not increase during the Additional Retail Term.
(g) Additional Rent for Additional Retail Premises . In addition to the Annual Rent payable on the Additional Retail
Premises, Tenant shall, at its sole cost and expense, pay as additional rent with each Monthly Installment of Rent, one-twelfth (1/12) of
Landlord’s estimate of Tenant’s Percentage Share of any Operating Expenses and any Real Estate Taxes on the Additional Retail Premises.
Tenant shall not be obligated to pay Tenant’s Percentage Share of any Operating Expenses or any Real Estate Taxes attributable to the Original
Remaining Premises, but rather will continue to pay Direct Expenses and Taxes attributable to the Original Remaining Premises in accordance
with the Lease. Within one hundred twenty (120) days after the end of each calendar year, Landlord shall furnish to Tenant a statement setting
forth the Operating Expenses and Real Estate Taxes applicable to such period and Landlord or Tenant shall within thirty (30) days thereafter
make such payment or allowance necessary to adjust estimated payment to the actual amount of Tenant’s actual Percentage Share of Operating
Expenses and Real Estate Taxes as shown on such statement. Any amount due Tenant shall be credited against installments next coming due of
rent or by payment to Tenant when adjustment is to be
made in the last year of the Lease. The calculation of Operating Expenses and Real Estate
Taxes for less than a full calendar year shall be based upon the pro - rata share of Operating Expenses and Real Estate Taxes for the calendar
year in which the Lease commences and expires. If at any time during any year of the Lease the rates of any Operating Expenses items or Real
Estate Taxes for the Center are increased to rate(s) or amount(s) greater than that used in calculating the estimated amounts for such year,
Landlord shall have the right to adjust Tenant’s monthly payments of Tenant’s Percentage Share of such items so that the same shall increase
concomitantly. Tenant shall pay such increases to Landlord as part of Tenant’s monthly payments of estimated Operating Expenses and Real
Estate Taxes commencing with the month in which such increase shall be effective. Landlord agrees to keep true and accurate records of
Operating Expenses for each year. Tenant shall have the right to dispute Landlord’s Operating Expense statement provided such notice is given
within one hundred eighty (180) days after the receipt by Tenant of such statement. During any such dispute, Tenant shall continue to make
payments on account of Operating Expenses in accordance with Landlord’s most recent statement thereof. In connection with such dispute,
Tenant shall be permitted to examine such records, during reasonable business hours and upon not less than fifteen (15) business days’ prior
written notice to Landlord, at Landlord’s corporate office currently located in Palm Beach, Florida. Tenant shall not be allowed to use any third
party audit recovery company acting wholly or partly on a contingency fee basis to perform such audit or examination of Landlord’s books and
records and shall evidence the same to Landlord’s satisfaction. If the parties are unable to resolve any dispute as to the correctness of such
statement within thirty (30) days following such notice of dispute, either party may refer the issues raised to a nationally recognized independent
public accounting firm selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively
binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the
information obtained in connection with such review. Tenant shall pay the fees and expenses relating to such procedure, unless such accountants
determine that Landlord overstated Operating Expenses by more than ten percent (10%) with respect to such statement, in which case Landlord
shall pay such fees and expenses. Upon expiration of the thirty (30) day period following delivery of Landlord’s Operating Expense statement to
Tenant, Landlord’s Operating Expense statement shall be deemed conclusive by Tenant, unless Tenant has theretofore timely delivered a notice
of dispute.
(h) Limitation on Increase in Real Estate Taxes . Notwithstanding anything set forth herein to the contrary, if (i) the
Center is sold, or there is a change in control of Landlord, on or before the fifth (5th) anniversary of the Additional Retail Commencement Date,
and (ii) there is an increase in Real Estate Taxes directly attributable to such sale or change in control, then, in such event, Tenant shall not be
responsible for paying Tenant’s Percentage Share of such increase for the remainder of the Additional Retail Term. There shall be no limitation
on Tenant’s obligation to pay Tenant’s Percentage Share of any increase in Real Estate Taxes as a result of any sale or change in control
after the
fifth (5th) anniversary of the Additional Retail Commencement Date or during any renewal term of the Lease.
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