Circuit City 2009 Annual Report Download - page 92

(i) Defined Terms : As to the Additional Retail Premises, the following terms shall have the following meanings:
(i) Center : shall mean Mall of the Americas, as legally described on Exhibit “A” to this Amendment, together
with all improvements and other appurtenances relating thereto currently located or hereinafter erected thereon, plus such modifications thereto
as Landlord may from time to time designate.
(ii) Common Areas: shall mean those areas and facilities which, from time to time, may be furnished by
Landlord in or near the Center for the non - exclusive general common use of tenants and other occupants of the Center, their agents, employees
and customers, including, without limitation, parking areas, driveways, loading docks, passageways, walkways (interior and exterior), roofs,
ramps, common seating areas, landscaped areas, stairways, escalators, elevators, sewage treatment facilities (if any), restrooms, fountains, play
areas, meeting rooms and other similar areas or facilities.
(iii) Majors: Shall mean any store other than the Additional Retail Premises within the Center containing more
than 15,000 square feet of space.
(iv) Operating Expenses: shall mean all costs and expenses incurred by or on behalf of Landlord (less any
contribution, if any, to such costs and expenses made by any Majors, any tenants occupying space on the second floor of the Center, or any
tenants who pay their respective costs and expenses directly) in operating, managing, insuring and maintaining the Common Areas and other
portions of the Center that are the responsibility of Landlord, including, without limitation, all costs and expenses of operating, managing
(Tenant agreeing that such management may be undertaken by an entity affiliated with Landlord, in which case such affiliate shall be
compensated in a commercially reasonable manner and amount as any third party manager), maintaining, repairing, lighting, signing, cleaning,
painting, and striping of the Common Areas (including, without limitation, the cost of uniforms, equipment and employment taxes and benefits);
alarm and life safety systems; insurance, including, without limitation, rental abatement insurance, liability insurance for bodily injury, death,
personal injury and property damage, special form or all - risk property insurance (including coverage for losses due to fire, flood, wind or other
casualties covered by such insurance), worker’s compensation insurance or similar insurance covering personnel; maintenance of sprinkler
systems; removal of water, trash and debris; regulation of traffic; payments as required by any governmental authorities; costs and expenses in
connection with maintaining ambient air and environmental standards of any governmental authority; costs and expenses incurred, if any, which
are designed to protect or enhance the health, safety and welfare of the tenants of the Center or their employees; the costs of all materials,
supplies and services purchased or hired therefor; operation of public toilets; installing and renting of signs; fire protection; maintenance, repair
and replacement of utility systems serving the Center, including, without limitation, water, sanitary sewer and storm water lines and other utility
lines, pipes and conduits and any fees associated therewith; costs and expenses of maintaining, repairing, or replacing machinery and equipment
used in the operation and maintenance of the Common Areas and personal property taxes and other charges (including, but not limited to,
financing, leasing or rental costs) incurred in connection with such equipment; costs and expenses of maintenance, repair or replacement of
awnings, paving, curbs, walkways, landscaping, roofs, walls, drainage, pipes, ducts, conduits and similar items, plate glass, lighting shrubbery
and planters; costs and expenses incurred in the purchases or rental of music program services and loudspeaker systems; costs of providing light
and power to the Common Areas; cost of water services, if any, furnished by Landlord for the non-exclusive use of all tenants; and
administrative costs attributable to the Common Areas for on-site personnel and an overhead cost equal to five percent (5%) of the total costs
and expenses of operating and maintaining the Common Areas. With respect to any of the foregoing costs which are capital in nature, Landlord
shall amortize or depreciate such costs and expenses over a useful life in accordance with general accounting principles, and the amount of such
amortization or depreciation shall be included in Operating Expenses.
(v) Real Estate Taxes:
shall mean all federal, state, local, governmental, special district and special service area
taxes, assessments (special or otherwise), charges, governmental liens, surcharges and levies, general and special, ordinary and extraordinary,
foreseen and unforeseen (and substitutes therefor), of any kind whatsoever (including interest thereon whenever same shall be payable in
installments) that Landlord shall be obligated to pay arising out of the use, occupancy, ownership, leasing, management, repair or replacement of
the Center, or any property, fixtures or equipment thereon, as well as all taxes attributable to the Additional Retail Premises or rent imposed on
the Center from time to time by any governmental authority. Notwithstanding the foregoing, Real Estate Taxes shall exclude inheritance, transfer
or gift taxes imposed upon Landlord and any income taxes attributable to the Center or any rent).
(vi) Retail Lease Year: shall mean each period (during the Additional Retail Term) of twelve (12) calendar
months, commencing as of (A) the Additional Retail Rent Commencement Date, if the Additional Retail Rent Commencement Date is the first
day of a calendar month, or (B) the first day of the month next following the month in which the Additional Retail Rent Commencement Date
occurred if the Additional Retail Rent Commencement Date is other than the first day of a calendar month, in which event the first Retail Lease
Year shall include the partial month commencing on the Additional Retail Rent Commencement Date.
(vii) Tenant’s Percentage Share: shall mean that fraction, the numerator of which is the total number of
rentable square feet of space contained within the Additional Retail Premises and the denominator of which is the total number of rentable
square feet within the Center less (A) the area leased to Majors, and (B) the square footage occupied by tenants on the second floor of the Center.
Commencing on the first day of the third full calendar year of the Additional Retail Term, in no event shall Tenant’s payment of Tenant’s
Percentage Share of Operating Expenses increase by more than 5% over the previous calendar years’ Operating Expenses due hereunder
(excluding from the foregoing cap taxes, insurance, utilities, and any other expense not controllable by Landlord).
3