Circuit City 2005 Annual Report Download - page 130

agreed to) Change Orders with respect to the Expansion Improvements in the same manner and with the same effect as
Change Orders to the Initial Improvements; expressly excepting, however, that notwithstanding anything to the
contrary contained in Section 2.4: (i) if the Change Order Cost is less than the original charge for the work being
deleted or changed, the amount of actual costs savings up to but in no event exceeding $100,000 in the aggregate for all
Change Orders shall be credited to Tenant (with any cost savings of $100,000 or more accruing solely to Landlord
without credit to Tenant); (ii) if the Change Order Cost is greater than the original charge for the work being changed,
then Tenant shall pay to Landlord such Change Order Cost simultaneously with execution of the Change Order; and
(iii) any Soil Conditions Adjustment shall automatically and conclusively be deemed to be a Change Order to be paid at
Tenant’s sole cost and expense. For purposes hereof, a “Soil Conditions Adjustment” is any soil conditions which
differ materially from those recommended in the soil report and result in an increase to cost of construction of the
Expansion Improvements, including without limitation, any condition which requires added structural or foundation
support, the importation or exportation of soil or fill to level the site or otherwise put the site in readily buildable
condition.
Section 2A.6 Warranty as to Expansion Improvements. Subject to Section 2A.4 hereof with respect to
compliance with ADA in regard to the Expansion Improvements, Landlord shall cause Expansion Contractor to warrant
to Tenant, for a period of one (1) year after Substantial Completion of the Expansion Improvements (“Warranty
Period”), that the Expansion Improvements shall be constructed in substantial compliance with the Final Expansion
Plans and Specifications, and shall be free from defects in workmanship or materials. After the conclusion of the
Warranty Period, Landlord or Expansion Contractor, as the case may be, shall assign and transfer to Tenant all
assignable warranties then in effect with respect to the Expansion Improvements which were given to Landlord or
Expansion Contractor in the first instance. Among other things, Landlord shall cause the warranty on the roof (fifteen
(15) years labor and material, plus five (5) additional years material only) of the Expansion Improvements to be
assigned and transferred jointly to Tenant and Landlord. If during the Warranty Period, Tenant notifies Landlord, in
writing, of defective workmanship or materials in the construction of the Expansion Improvements, Landlord shall
notify Expansion Contractor to promptly cause such defect to be corrected. Thereafter, the Warranty Period for the item
or items which were defective and were corrected pursuant to the preceding sentence, and only for such item or items,
shall continue for a period of one (1) year after the date of such correction.
Landlord and Tenant hereby acknowledge and agree that with respect to any latent defects in workmanship or
materials in the construction of the Expansion Improvements, Landlord and Tenant shall be governed by the provisions
of Illinois statutory and common law, including, without limitation, the provisions of 735 ILCS 5/13-214, as the same
may be amended, modified and interpreted from time to time.
Anything in this Lease to the contrary notwithstanding, in the event that Tenant suffers or incurs any indirect or
consequential damages as a result of a breach of the foregoing warranty, Tenant waives any claims with respect thereto
against Landlord and agrees that Landlord shall not be liable therefor.
The warranty which is provided hereunder is limited in certain respects and is conditioned on the following:
(a) Tenant shall use the Expansion Improvements only in accordance with the design capacities and criteria
established therefor. Tenant acknowledges that any misuse thereof may void the warranty hereunder, and may void any
manufacturers’ or other warranties which may be assigned to Tenant hereunder.
(b) In addition to the foregoing, the warranty hereunder shall not extend to the electrical systems, plumbing
systems, heating, ventilating and air conditioning systems, fire protection systems or other mechanical systems
servicing the Expansion Improvements, unless said systems are maintained and operated in compliance with the
manufacturers’ specifications therefor by one or more professionals experienced in the maintenance and servicing of
such systems, at least through the Warranty Period.
(c) Any and all work required to be performed under this Section 2A.6 (“Warranty Work”) shall not in any
way include or require Landlord or Expansion Contractor to perform any routine or appropriate regular maintenance of
the Expansion Improvements required to be performed by Tenant during the Warranty Period (or thereafter) as part of
Tenant’s Repairs and Maintenance (as such term is defined in Section 6.2 hereof).
Section 2A.7 Expansion Punch List.
Landlord, Expansion Contractor and Tenant shall, on the date on which