Circuit City 2005 Annual Report Download - page 136

Money shall be held by Escrow Holder in an interest bearing account for the benefit of Buyer. At the Closing, the
Earnest Money shall be applied to the Purchase Price. The Earnest Money shall constitute liquidated damages for
Buyer’s default as provided in Section 2.1.2 below.
At Seller’s option, Seller may deposit the Deed and any other instruments or instructions that Seller may be required to
deposit in Escrow hereunder with Escrow Holder through Escrow Holder’s office at 5775-D Glenridge Drive, Suite
400, Atlanta, Georgia 30328, Attn: ______________.
2.1.2 Liquidated Damages. Seller and Buyer have discussed the possible consequences to Seller if the Escrow fails to
close on or before the Closing Date (defined below). Accordingly, the parties agree that the Earnest Money shall be
paid to and retained by Seller as full liquidated damages pursuant to O.C.G.A. § 13-6-7, and not as a penalty, if Buyer
defaults in its obligation to purchase the property in accordance with this Agreement. Buyer and Seller further agree
that Seller’s right to be paid and retain the Earnest Money shall be the sole and exclusive remedy of Seller at law, in
equity or otherwise in the event of such default by Buyer. Seller and Buyer have made this provision for liquidated
damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach,
and Seller and Buyer agree that these sums represent reasonable compensation to Seller for such breach. Thus, the
parties hereto acknowledge (i) that it is impossible to pre-estimate more precisely the damages to be suffered by Seller
upon Buyer’s default, (ii) that the amount of the Earnest Money is a reasonable pre-estimate of the probable loss or
damages to Seller in the event of Buyer’s default, and (iii) that the Earnest Money is intended not as a penalty, but as
full liquidated damages.
2.2 Cash at Closing . Buyer shall pay the balance of the Purchase Price, subject to adjustment pursuant to Sections 7
and 8 below, in cash or other immediately available funds at the Closing.
3. Escrow and Closing; Delivery of Documents .
3.1 Escrow and Closing . As used herein, the “Closing” shall mean the act of settlement of the purchase and sale of
the Property in accordance with this Agreement at which, among other matters, title to the Property is conveyed from
Seller to Buyer and the Purchase Price is paid by Buyer to Seller. The Closing shall occur in escrow on the Closing
Date through the Escrow Holder. Each party shall timely deposit with Escrow Holder such funds, documents and
supplementary written escrow instructions as may be necessary to consummate this transaction in accordance with this
Agreement. To the extent any such instructions are inconsistent with this Agreement, the terms of this Agreement shall
control.
3.2 Closing Date; Condition at Closing; Purchase Price Adjustment . Subject to the satisfaction or written waiver of
all conditions to the Closing expressly set forth in this Agreement, the Closing shall occur on the earlier of (a) July 1,
2006, or (b) the fifth (5th) business day after the entire Property has been vacated by Seller (and all tenants and other
occupants claiming by, through or under Seller), the Property has been put in the Closing Condition (as defined below)
by Seller, and Buyer has received written notice from Seller that Seller has vacated the Property and put the Property in
the Closing Condition; provided, however, that Seller shall not deliver such written notice to Buyer before the
contingencies contained in Sections 4.1 (inspection), 4.3 (title) and 4.4 (survey) below have been satisfied or waived in
writing by Buyer (the earlier of (a) or (b) being referred to herein as the “Closing Date”). The Closing Date may not be
otherwise accelerated, extended or adjourned except as provided in Section 4.2, the last unnumbered paragraph of
Section 4, 11.6.1 or 11.6.2 below or upon the mutual written agreement of the parties. On the Closing Date, Seller shall
deliver the Property to Buyer in the following condition (the “Closing Condition”): broom clean, subject only to the
Permitted Exceptions (defined below), and with all of Seller’s business inventory, trade equipment (including all
materials handling equipment), warehouse racking, conveyor systems, pallet trucks, pallet racks, pallet truck charging
stations, workbenches, furniture, office partitions, file cabinets, computer network equipment, telephone equipment and
all other detached and moveable tangible personal property (collectively, the “Removable Property”) having been
removed from the Property and all damage resulting from such removal having been repaired. Within thirty (30) days
following the Effective Date, Seller shall prepare and deliver to Buyer a schedule of the Removable Property. If on or
before June 15, 2006 Seller (and all tenants and other occupants claiming by, through or under Seller) do not vacate the
entirety of the Property or Seller does not tender the Property to Buyer in the Closing Condition (irrespective of
whether Seller’s inability to do so is the result of force majeure or any other circumstance beyond Seller’s control) or
Seller does not tender to Buyer through Escrow all of the documents and instruments described in Section 6.1 below,
then the Purchase Price shall be reduced by $7,500 per day until Seller (and all tenants and other occupants claiming