Circuit City 2005 Annual Report Download - page 135

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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the “Agreement”) is made and entered as of the date of the
later of Buyer’s or Seller’s signature hereinbelow (the “Effective Date”) by and between SYSTEMAX SUWANEE
LLC, a Delaware limited liability company (“Seller”), and HEWLETT-PACKARD COMPANY, a Delaware
corporation (“Buyer”).
R E C I T A L S:
This Agreement is made with reference to the following facts:
A. Seller owns that certain real property located in the City of Suwanee, County of Gwinnett, State of Georgia,
commonly known as 120 Satellite Boulevard, N.W., and more particularly described in Exhibit “A” hereto (the
“Land”). The term “Land” includes, without limitation, all water, oil, gas, and other mineral rights benefiting,
belonging or appurtenant to the Land and all other rights and appurtenances pertaining to the Land including, without
limitation, all rights-of-way, easements, and development rights benefiting, belonging or appurtenant to the Land and
any right, title and interest of Seller in and to adjacent streets, alleys or rights of way, strips and gores and after
acquired title rights. Certain improvements exist on the Land, including a certain building containing approximately
360,675 square feet of warehouse and office space (the “Building”). The Building and any other structures and
improvements on or to the Land and any mechanical systems (including, without limitation, HVAC systems),
machinery, fixtures and equipment within, affixed or attached to any of the foregoing are collectively referred to herein
as the “Improvements”. The Land and Improvements are collectively referred to herein as the “Real Property”.
B. Seller wishes to sell, and Buyer wishes to purchase, the Real Property, the Personal Property (as defined in
Section 9.3, below), and the Assigned Property (as defined in Exhibit “C” hereto), all on the terms and subject to the
conditions set forth in this Agreement. The Real Property, Personal Property, and Assigned Property are sometimes
collectively referred to herein as the “Property”.
NOW, THEREFORE, for good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase and Sale . Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase from
Seller, the Property, on the terms and subject to the conditions set forth in this Agreement.
2. Purchase Price
. The purchase price of the Property is EIGHTEEN MILLION DOLLARS SIX HUNDRED SIXTY
ONE THOUSAND FIVE HUNDRED THIRTY EIGHT DOLLARS ($18,661,538.00), subject to adjustment in
accordance with Section 3.2 below (the “Purchase Price”), to be paid by Buyer as follows:
2.1 Earnest Money and Liquidated Damages .
2.1.1 Earnest Money. Not later than three (3) business days after the full execution of this Agreement by both parties
and the parties’ deposit of a copy of such fully executed Agreement with Escrow Holder (as defined below), Buyer
shall deposit in escrow (the “Escrow”) with First American Title Insurance Company (“Escrow Holder”), National
Commercial Services, 1737 North First Street, Suite 100, San Jose, California 95112, Attn: Sherry Savoy, Escrow
Officer, a cash deposit (collectively with all interest earned thereon while in Escrow, the “Earnest Money”) in the
amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00). If the condition set forth in Section 4.1
below is satisfied or waived in writing by Buyer, Buyer shall increase the Earnest Money to ONE MILLION EIGHT
HUNDRED THOUSAND DOLLARS ($1,800,000.00) by depositing an additional ONE MILLION FIVE HUNDRED
FIFTY THOUSAND DOLLARS ($1,550,000.00) with Escrow Holder within two (2) business days after the last day
of the Inspection Period. Upon Buyer’s deposit of such additional funds with Escrow Holder, all references herein to
the “Earnest Money” shall refer to the original Earnest Money as so increased. The Earnest Money shall be promptly
refunded to Buyer in the event of the timely exercise of any termination right granted to Buyer in this Agreement or
Buyer’s termination of this Agreement based on Seller’s default (and in any such event, Seller shall instruct Escrow
Holder to so return the Earnest Money), and in the absence of any such termination shall be retained by Seller, provided
that if the Closing (as defined below) shall occur, the Earnest Money shall be applied against the Purchase Price at the
Closing. Until such time as the Earnest Money is to be disbursed in accordance with this Agreement, the Earnest