Circuit City 2005 Annual Report Download - page 144

10.2.13 Occupancy Rights. There are no leases or other occupancy or use agreements affecting the Property or any
part thereof which will remain in effect from and after the Closing Date (the parties acknowledging that the Property is
presently leased to Seller’s affiliate, Global Equipment Company, which lease Seller shall cause to terminate at Seller’
s
sole expense at or prior to the Closing). To Seller’s best knowledge, there are no parties currently entitled to possession
or use of all or any part of the Property other than Seller and Seller’s affiliate, Global Equipment Company. As of the
Closing, there shall be no person or entity occupying or using all or any portion of the Property.
10.2.15 Title. Seller owns, and at the time of the Closing Seller will continue to own, fee simple title to the Real
Property.
10.2.16 Uncompleted Work/Agreement. There are no outstanding contracts made and entered into by Seller for any
improvements to the Property or any part thereof or for other work with respect to the Property or any part thereof for
which payment has not been fully made or will be made prior to the Closing.
10.2.17 Foreign Person. Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue
Code.
10.2.18 Private Covenants. To Seller’s actual knowledge, Seller is not in default in the payment of any assessments or
other sums due, or the performance of any other obligation under, any covenants, conditions or restrictions recorded
against the Real Property.
Seller’s representations and warranties in this Section 10.2 shall be true and correct as of the Effective Date, shall be
deemed true and correct as of the Closing as if remade by separate certification at that time, and shall survive the
Closing and delivery and recordation of the Deed and shall not be merged into the Deed for a period of one hundred
eighty (180) days following the Closing (except that the representations and warranties in Section 10.2.1 through 10.2.3
shall survive in perpetuity). No claim for a breach of any representation or warranty of Seller shall be actionable or
payable (a) if the breach in question results from or is based on a condition, state of facts or other matter which was
known to Buyer prior to the Closing, or should have been known by Buyer though the exercise of reasonable diligence
in Buyer’s investigations of the Property prior to the end of the Inspection Period, but in either case only if the
applicable representation or warranty was true and correct when made by Seller on the Effective Date, and (b) unless
written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller
prior to the expiration of said 180-day period and an action shall have been commenced by Buyer against Seller within
ninety (90) days after the termination of the survival period provided for above in this Section 10.2 (except that that the
foregoing time limitations shall not apply to any claim or action for breach of any of the representations and warranties
in Section 10.2.1 through 10.2.3 above). If following the Effective Date and prior to the Closing Seller acquires actual
knowledge of any fact, circumstance or other matter that makes any of Seller’s representations and warranties in this
Section 10.2 no longer true and correct, Seller shall give Buyer written notice thereof, which notice shall describe such
fact, circumstance or other matter in reasonable detail. Without limitation of any other termination rights granted to
Buyer under the terms of this Agreement, in the event that Seller is unable to confirm that any of Seller’s
representations and warranties in this Section 10.2 is true and correct as of the Closing as a result of any matter not
reasonably discoverable by Buyer during the Inspection Period (and so notifies Buyer in writing prior to the Closing)
and, as a result, there is (a) a material adverse change in Buyer’s ability to acquire, use and/or operate the Property for
Buyer’s intended purposes and/or (b) a material adverse change in the environmental condition of the Property from
that which was represented to Buyer by Seller on the Effective Date, Buyer, as its sole remedy, shall have the option to
either (i) terminate this Agreement by written notice to Seller, in which event this Agreement shall terminate in
accordance with Section 11.14 below, or (ii) waive the requirement that such Seller representation or warranty be true
and correct as of the Closing and proceed to the Closing.
11. Miscellaneous .
11.1 Possession; Property Related Materials
. Seller shall deliver exclusive possession of the Property to Buyer on the
Closing Date. If not previously delivered to Buyer, Seller shall, at the Closing, deliver originals or copies of all
Property Related Documents, all files, correspondence, maintenance records and operating manuals relating to the
Property, and all keys, key cards, fobs, passwords, and access codes relating to the Property. All of the foregoing shall
become the property of Buyer on the Closing Date.