Circuit City 2005 Annual Report Download - page 105

(g) Provided that all of the conditions set forth herein are theretofore fully satisfied, and provided that Tenant
has not previously terminated this Purchase Option pursuant to the terms of sub-paragraph (f) above, the closing or
settlement (“Closing”) of the sale of the Premises contemplated hereby shall be held at the offices of Landlord’s
attorney, during regular business hours on or before the date which is thirty (30) calendar days following Substantial
Completion. The exact time and date of Closing shall be selected by Tenant by written notice given to Landlord at least
five (5) days prior to the date so specified. If Tenant shall fail to close by such date, the Purchase Option shall terminate
and Landlord shall be entitled, as its sole and exclusive remedy hereunder, to receive the Earnest Money as full
liquidated damages for such default, whereupon this Purchase Option shall terminate and the parties shall have no
further rights or obligations hereunder, except for those which expressly survive any such termination. The parties
hereby acknowledge the difficulty of ascertaining Landlord’s actual damages in such circumstance and agree, after
discussion, that the Earnest Money represents a good faith estimate thereof and is not intended as a penalty, but as full
liquidated damages pursuant to O.C.G.A. Section 13-6-7. Tenant covenants not to bring any action or suit challenging
the amount of liquidated damages provided hereunder in the event of such default. This provision shall expressly
survive the termination of this Special Stipulation 11 and the Lease.
(h) At Closing, Landlord shall convey fee simple title to the Premises to Tenant by limited warranty deed,
which shall expressly be made subject to all matters of record except for past due monetary liens created by Landlord
and any security deeds, mortgages, deeds of trust or other financing created by Landlord, which Landlord shall be
obligated to pay off and discharge at Closing. Landlord shall execute and deliver reasonable evidence of authority and
existence, evidence of non-
foreign status required by the Internal Revenue Code (without which tax will be withheld as
required by law), a closing statement, an owner’s affidavit of title (in substantially the form required by a national title
insurance company reasonably approved by Landlord (the “Title Company”)), a state transfer tax declaration and other
documents which are customarily required by the Title Company at the time of Closing to issue its owner’s title
insurance policy. Landlord shall pay the State transfer tax payable in connection with conveyance of the Premises. All
other costs of Closing, including, without limitation, all title insurance costs, survey, recording and other due diligence
expenses shall be paid by Tenant. Ad valorem taxes assessed against the Premises for the year in which the Closing
occurs shall be prorated as of the day of Closing.
(i) At Closing, Landlord shall warrant to Tenant that the materials and equipment furnished by Landlord’s
contractors in the completion of Landlord’
s Work will be of good quality and new, that during the one period following
the date of Substantial Completion of Landlord’
s Work, such materials and equipment and the work of such contractors
shall be free from defects not inherent in the quality required or permitted under the Lease, and that such work will
conform to the Plans and Specifications described in the Lease. This warranty shall exclude damages or defects caused
by abuse by Tenant and Tenant’s Affiliates, improper or insufficient maintenance, improper operation, or normal wear
and tear under normal usage. Upon the expiration of the aforementioned one year warranty, Landlord shall grant to
Tenant, without recourse or warranty, a non-exclusive right to exercise Landlord’
s rights under any warranties obtained
with respect to the roof, heating, ventilation and air conditioning system, or any other portions of the Building.
Landlord shall obtain a minimum ten (10) year roof warranty
(j) Landlord and Tenant each warrant and represent to the other that neither has employed or otherwise
engaged a real estate broker or agent in connection with the sale of the Premises pursuant to the Purchase Option, and
the parties agree to execute an affidavit to that effect at the Closing. Landlord and Tenant covenant and agree, each to
the other, to indemnify the other against any loss, liability, costs (including reasonable attorneys’ fees), claims,
demands, causes of action and suits arising out of the alleged employment or engagement by the indemnifying party of
any real estate broker or agent in connection with the Purchase Option. The indemnities contained in this subsection (j)
shall survive Closing and any termination of this Lease.
(k) Notwithstanding anything contained in this Special Stipulation 11 to the contrary, in the event (i) the
Lease is terminated for any reason prior to the exercise of the Purchase Option by Tenant, or (ii) Tenant fails to timely
exercise the Right of First Refusal pursuant to the terms of Special Stipulation 2 above, then the Purchase Option shall
terminate. This Purchase Option is personal to Global Equipment Company, Inc. and those permitted assignees under
Section 29(b) hereof, and shall automatically terminate and be of no further force and effect if Global Equipment
Company, Inc. assigns or sublets all or any portion of its interest in this Lease except as set forth in that Section. This
Purchase Option may not be assigned by Global Equipment Company, Inc. regardless of whether Global Equipment
Company, Inc. is the Tenant under this Lease.