Circuit City 2009 Annual Report Download - page 93

(j) Utilities for Additional Retail Premises . Tenant shall be responsible, at Tenant’s sole cost and expense, for all
utility services that exclusively serve the Additional Retail Premises irrespective of whether the utility services are located inside or outside the
Additional Retail Premises. If any such utilities are not separately metered or submetered and/or are used in common with other tenant’s in the
Center, Tenant will pay Tenant’s share of same as Additional rent.
(k) Prepaid Rent . Concurrently with Tenant’s execution of this Amendment, Tenant shall pay to Landlord the Prepaid
Rent in the amount of Sixty Eight Thousand Five Hundred Seventy Five and 00/100 Dollars ($68,575.00), which represents Tenant’s first
Monthly Installment of Rent.
(l) Landlord’s Work in the Additional Retail Premises . Landlord will complete the work designated as the
“Landlord’s Work” in accordance with Exhibit “C” hereto. If requested by Landlord in writing, Tenant shall within ten (10) days after such
written request provide all information required in order to enable Landlord to complete the Landlord’s Work. There shall be no postponement
or
the Additional Retail Commencement Date (or the Additional Retail Rent Commencement Date) for the Additional Retail Premises for (i) any
delay in the delivery of possession of the Additional Retail Premises which results from any act or omission of Tenant, including delays due to
changes in, additions to or interference with any work to be done by Landlord, or delays by Tenant in submission of information or approving
working drawings or estimates or giving authorizations or approvals, or (ii) any delay by Landlord in the performance of any punch list items
relating to the Landlord’s Work. If there is a dispute as to (A) the completion of the Landlord’s Work, or (B) the availability of the Additional
Retail Premises for possession by Tenant, a certificate of Landlord’s architect will be final and binding on the parties. Tenant will examine the
Additional Retail Premises before taking possession and will furnish Landlord with written notice specifying any defects within ten (10) days
after taking possession otherwise, Tenant will be deemed to have agreed that the Additional Retail Premises are in good order and have been
completed. Notwithstanding anything herein to the contrary, during the first twelve (12) months following the completion of the Landlord’s
Work, Landlord shall be responsible to correct any latent defects in the Landlord’s Work. There is no promise, representation or undertaking by
or binding upon Landlord with respect to any alteration, remodeling or redecorating of or installation of equipment or fixtures in the Additional
Retail Premises, unless expressly set forth in this Amendment.
(m) HVAC . Tenant shall be responsible for the maintenance and repair of existing HVAC units serving the Additional
Retail Premises during the Additional Retail Term and any extensions thereto including (i) belt and filter replacement, (ii) charging of the
coolant systems, if required, (iii) performing quarterly inspections using a licensed HVAC contractor reasonably acceptable to the Landlord, and
(iv) for all maintenance, repairs and replacement cost of less than Two Thousand Five Hundred and 00/100 Dollars ($2,500.00) to any existing
HVAC units serving the Additional Retail Premises (i.e., Tenant shall be responsible for paying the first $2,500 of any such costs). If any
maintenance, repair or replacement costs to the HVAC units exceed Two Thousand Five Hundred and 00/100 Dollars ($2,500.00), then Tenant
shall have the option to either (A) require Landlord to repair and/or replace such HVAC unit and Landlord shall amortize the cost of such repair
and/or replacement over the useful life of the unit or part and Tenant shall pay such cost to Landlord as additional rent, or (B) repair and/or
replace such HVAC unit at Tenant’s sole cost and expense.
(n) Permitted Use . Tenant may use the Additional Retail Premises for the retail sale, rental and servicing of the
following uses (collectively, the “Permitted Retail Use”): (i) computer hardware and software; (ii) general business office equipment; (iii) multi
media electronics and equipment and interactive games and equipment; (iv) telecommunications equipment; (v) consumer electronics and
equipment; (vi) audio, video and game software, compact discs, laser discs, digital hardware and software; (vii) digital photographic equipment;
and (viii) wireless and broadband phone and data services, and for other hardware, software products and accessories, including without
limitation, those for sending, receiving, viewing, and playback and those created by changing technologies related to categories (i) through (viii)
above. Tenant may also use the Additional Retail Premises to offer services or events related to the technology products that Tenant sells and
incidental thereto (the “Incidental Services & Events”), which Incidental Services & Events shall include, but not limited to, trainings, seminars
and computer gaming events, and video or photographic production. Notwithstanding anything herein to the contrary, Tenant shall not use the
Additional Retail Premises in violation of the exclusive and prohibited uses set forth on Exhibit “D” attached hereto.
(o) Operating Covenant . Tenant shall occupy the Additional Retail Premises upon the Additional Retail
Commencement Date. Tenant may only use the Additional Retail Premises for the Permitted Retail Use under the Permitted Trade Name (as
defined below) and for no other purpose or name whatsoever without Landlord’s prior written consent. Tenant covenants and agrees that the
Additional Retail Premises shall be fully staffed and stocked and open for business to the general public for at least one (1) day within the first
three (3) months after the Additional Retail Commencement Date. Furthermore, at all times that Tenant is open and operating for business,
Tenant shall maintain an access point between the Additional Retail Premises and the enclosed portion of the Center (to allow ingress and egress
of Tenant’s customers and invitees), which access point shall have no less than two (2) cash register check out stations. If Tenant fails to
maintain such access point in accordance with this Section 2(o), and such failure continues for five (5) days after written notice from Landlord,
then such failure will be an Event of Default under the Lease. For purposes of the Additional Retail Premises, the term “Permitted Trade Name”
shall mean CompUSA, Tiger Direct.com Discount Computers or other trade name used or may be used by Tenant at a majority of its retail
locations in the United States. If Tenant fails to continuously operate the Additional Retail Premises for more than sixty (60) days, then
Landlord
shall have the right (but shall not have any obligation), at any time thereafter, to terminate Tenant’s right to possession of the Additional Retail
Premises by written notice to Tenant (the “Re-Capture Notice”). The Re-Capture Notice will set forth the date (the “Re - Capture Date”) on
which Tenant’s right to possession of the Additional Retail Premises will terminate. If Landlord delivers a Re-Capture Notice, Tenant’s rights to
occupy the Additional Retail Premises will terminate on the Re-Capture Date, and Tenant will then vacate and surrender the Additional Retail
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