CompUSA 2014 Annual Report Download - page 78

Notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to pay for Controllable Operating
Expenses in any year to the extent they have increased by more than four percent (4%) per annum, compounded annually on a cumulative basis
from the first full calendar year following the Commencement Date during the Lease Term. For purposes of this Paragraph, Controllable
Operating Expenses shall mean all Operating Expenses as set forth in this Paragraph 6 of the Lease, except for Taxes, insurance premiums, costs
in connection with adverse weather conditions (including, without limitation, snow removal), cost of unanticipated repairs, costs in connection
with compliance with the Legal Requirements that take effect after the Commencement Date, property management fees (which are set as a
fixed percentage as expressly set forth above), and repairs or maintenance necessary exclusively as a result of activities of Tenant or its agents at
the Project and utility costs. Controllable Operating Expenses shall be determined on an aggregate basis and not on an individual basis, and the
cap on Controllable Operating Expenses shall be determined on Operating Expenses as they have been adjusted for vacancy or usage pursuant to
the terms of the Lease.
Within ninety (90) days following the close of each calendar year of the Lease Term or any extension terms thereof, Landlord
shall deliver to Tenant a reconciliation statement certified as correct by an officer or other authorized representative of Landlord showing in
detail on a line item basis the items included in the Operating Expenses and all computations of the actual Operating Expenses and Tenant’
s
Proportionate Share of such Operating Expenses owed for such calendar year in accordance with this section. Landlord shall maintain detailed
books and records accounting for all such costs. If requested by Tenant, Landlord shall furnish to Tenant reasonable backup and supporting
information and documentation pertaining to the Operating Expenses. If Tenant's total payments of Operating Expenses for any year are less
than Tenant's Proportionate Share of
actual Operating Expenses for such year, then Tenant shall pay the difference to Landlord within 30 days
after demand, and if more, then Landlord shall retain such excess and credit it against Tenant's next payments except that during the last calendar
year of the Lease Term or any extension terms thereof, Landlord shall refund any such excess within 60 days following the termination of the
Lease Term or any extension terms thereof, provided that Tenant is not in default of its obligations under this Lease. For purposes of calculating
Tenant's Proportionate Share of Operating Expenses, a year shall mean a calendar year except the first year, which shall begin on the
Commencement Date, and the last year, which shall end on the expiration of this Lease.
With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant's "Proportionate Share" shall be the percentage set forth on the first page of this Lease as Tenant's
Proportionate Share of the Project as reasonably adjusted by Landlord in the future for changes in the physical size of the Premises or the
Project; and, with respect to Operating Expenses which Landlord allocates only to the Building, Tenant's "Proportionate Share" shall be the
percentage set forth on the first page of this Lease as Tenant's Proportionate Share of the Building as reasonably adjusted by Landlord in the
future for changes in the physical size of the Premises or the Building. Landlord may equitably increase Tenant's Proportionate Share for any
item of expense or cost reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion
of the Project or Building that includes the Premises or that varies with occupancy or use.
The estimated Operating Expenses for the Premises set forth on the first page of this Lease are only estimates, and Landlord
makes no guaranty or warranty that such estimates will be accurate. However, for the first 12-
month period following the Commencement Date,
Tenant’s responsibility for the payment of Controllable Operating Expenses for such 12-month period shall not be
more than 4 percent of the
first page estimates.
7.
Utilities
. Tenant shall pay for all water, gas, electricity, heat, light, power, telephone, sewer, sprinkler services, refuse and trash
collection, and other utilities and services used on the Premises, all maintenance charges for utilities, and any storm sewer charges or other
similar charges for utilities imposed by any governmental entity or utility provider, together with any taxes, penalties, surcharges or the like
pertaining to Tenant's use of the Premises.
No interruption or failure of utilities shall result in the termination of this Lease or the abatement of rent. Notwithstanding
anything contained herein to the contrary, in the event that such interruption or cessation of utilities results from Landlord’
s negligent or willful
act or omission continues beyond five (5) business days from the date of such interruption or cessation, then, provided Tenant has delivered
Landlord with prompt notice of such interruption, the rent under this Lease will abate, commencing on the fifth (5
th
) business day the Premises
remain untenantable, and continuing until the date on which the utilities are restored and the Premises are again tenantable. No abatement of
rentals as hereinabove described will apply in the event such interruption of utilities is the result of Tenant's alterations to the Premises, or any
negligent act or omission of Tenant, its agents, employees or contractors, or any cause other than the negligent or willful act or omission of
Landlord or its employees, agents or contractors.
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