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NEGOTIATING KEY LEASE PROVISIONS A Landlord's Point of View - page 28 / 60

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FORM 8

PERCENTAGE RENT AND GROSS SALES PROVISIONS (NEUTRAL)

Percentage Rent. Tenant shall pay, within sixty (60) days following the end of each Lease Year (as defined herein) during the Term, percentage rent for each such Lease Year, equal to the amount by which three-fourths of one percent of all Gross Sales (as defined herein) during such

_ _ _ _ _ _ _ _ _ Lease Year are in excess of ). In the event this _ _ _ _ _ _ _ _ _ _ _ _ _ _ D o l l a r s ( $ _ _ _ _ _ _ _ _ _ Lease terminates prior to the expiration of a Lease Year or the last Lease Year is less than twelve (12) months, percentage rent for such partial Lease Year shall equal the amount by which three-fourths of one percent of all Gross Sales during such partial Lease Year are in excess of the

_ _ _ _ _ _ _ _ _ amount derived by multiplying ) by a fraction, _ _ _ _ _ _ _ _ _ _ _ _ _ _ D o l l a r s ( $ _ _ _ _ _ _ _ the numerator of which is the number of days in such partial Lease Year and the denominator of which is three hundred sixty-five (365). In the event the first Lease Year is greater than twelve (12) months, percentage rent for such first Lease Year shall equal the amount by which three-fourths (3/4) of one percent (1%) of all Gross Sales during such first Lease Year are in

excess of the amount derived by multiplying Dollars _________________________ ($_________) by a fraction, the numerator o which is the number of days in such first Lease Year and the denominator of which is Three Hundred Sixty-Five (365).

Tenant shall, within sixty (60) days after the end of each Lease Year, submit to Landlord a statement showing the Gross Sales made from the Market during such Lease Year, the amount of. all deductions, and the percentage rent, if any, due from Tenant to Landlord for such Lease Year.

Gross Sales. "Gross Sales" means the aggregate amount of the prices of all goods, wares and merchandise actually sold and services actually rendered in or from the Market by Tenant, its subtenants, licensees and concessionaires, without any express or implied warranty by Tenant that any particular level of Gross Sales will be achieved or maintained. Each sale upon installment or credit shall be treated as a sale for the full price at the time such sale is made. Tenant and its subtenants, licensees and concessionaires may, however, deduct from Gross Sales the following:

(a)

The price of merchandise returned by customers, and the amount of all allowances or

refunds made to customers for merchandise or services claimed to be defective or unsatisfactory

(not of any taxes excluded pursuant to (ii) below);

(b)

The amounts allowed for merchandise returned or traded-in by customers for credit, or

the amount of all payments made to customers in lieu of acceptance thereof (net of any taxes

excluded pursuant to (ii) below);

99999\11111\215691.V01 JDC

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