Circuit City 2005 Annual Report Download - page 121

written notice of such election to the other party (the "Other Party"), and shall designate in writing the Electing Party's
selection of an individual with the qualifications outlined in the section of the Lease giving rise to this remedy (the
"Official") who shall act on the Electing Party's behalf in determining the disputed fact.
(ii) Within twenty (20) days after the Other Party's receipt of the Electing Party's selection of an Official, the
Other Party, by written notice to the Electing Party, shall designate an Official who shall act on the Other Party's behalf
in determining the disputed fact.
(iii) Within twenty (20) days of the selection of the Other Party's Official, the two (2) Officials shall render
a joint written determination of the disputed fact. If the two (2) Officials are unable to agree upon a joint written
determination within such twenty (20) day period, each Official shall render his or her own written determination and
the two Officials shall select a third Official within such twenty (20) day period. In the event the two Officials are
unable to select a third Official within such twenty (20) day period, then either party may apply to a court of original
jurisdiction in Gwinnett County, Georgia for appointment by such court of such third Official.
(iv) Within twenty (20) days after the appointment of the third Official, the third Official shall select one of
the determinations of the two (2) Officials originally selected, without modification or qualification.
(v) If either Landlord or Tenant fails or refuses to select an Official, the Official selected shall alone
determine the disputed fact. Landlord and Tenant agree that they shall be bound by the determination of disputed fact
pursuant to this subsection. Landlord shall bear the fee and expenses of its Official, Tenant shall bear the fee and
expenses of its Official, and Landlord and Tenant shall share equally the fee and expense of the third Official, if any.
17. Tenant is in possession of, and has accepted, the Original Demised Premises, and acknowledges that all the
work to be performed by the Landlord in the Original Demised Premises as required by the terms of this Lease, if any,
has been satisfactorily completed. Tenant further certifies that all conditions of the Lease required of Landlord as of
this date have been fulfilled and there are no defenses or setoffs against the enforcement of the Lease by Landlord.
18. Tenant hereby accepts the Expansion Space in its "as-is" condition and acknowledges and agrees that
Landlord shall have no obligation to make any improvements in or to the Expansion Space. Notwithstanding the
foregoing, Landlord hereby warrants to Tenant, which warranty shall survive for the one (1) year period following the
Effective Date, that (i) the materials and equipment furnished by Landlord's contractors in the completion of the portion
of the shell building containing the Expansion Space and the improvements located within the Expansion Space as of
the Amendment Date are of good quality and new, and (ii) 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; provided,
however, that the foregoing warranty shall exclude damages or defects caused by Tenant or Tenant's Affiliates,
improper or insufficient maintenance, improper operation, and normal wear and tear under normal usage. Tenant
further acknowledges and agrees that Tenant, at its sole cost and expense, shall be responsible for constructing all
interior improvements within the Expansion Space (the "Expansion Improvements") and obtaining a certificate of
occupancy or its equivalent for the Expansion Space issued by the appropriate governmental authority. Tenant shall, at
its sole cost and expense, prepare and submit to Landlord for Landlord's written approval, which approval shall not be
unreasonably withheld or conditioned, a complete set of plans and specifications covering all work to be performed by
Tenant in constructing the Expansion Improvements (collectively, the "Expansion Plans"). The Expansion Plans shall
be in such detail as Landlord may reasonably require and shall be in compliance with all applicable statutes, ordinances
and regulations; provided, however, that Landlord's approval of the Expansion Plans shall not be deemed to be a
warranty or representation that the Expansion Plans comply with all applicable statutes, ordinances and regulations.
Landlord shall review the Expansion Plans and indicate requested changes, if any, by written notice to Tenant, within
fifteen (15) days after receipt of the Expansion Plans by Landlord. If Landlord fails to indicate such requested changes
to the Plans and Specifications by such date, the Expansion Plans shall be deemed approved. Thereafter, any changes to
the Expansion Plans shall be subject to Landlord's written approval. The Expansion Improvements shall be constructed
in accordance with the approved Expansion Plans by Tenant during the Term, as extended hereby, shall be constructed
in accordance with the terms of the Lease, including, without limitation, Section 18 thereof, and shall be of a type and
quality consistent with the type and quality of improvements constructed in the warehouse portion of the Original
Demised Premises. Upon the completion of the construction of the Expansion Improvements, Tenant shall promptly
provide Landlord with a complete set of the final "as-
built" plans for the Expansion Improvements together with a copy
of the certificate of occupancy (or its equivalent) for the Expansion Space. Notwithstanding anything herein to the