Circuit City 2005 Annual Report Download - page 150

hereby. Seller agrees to indemnify, defend and hold harmless Buyer from and against any and all claims, proceedings,
losses, damages, costs or expenses of any kind or character arising out of or resulting from: (1) the commissions due to
the Agent in connection with this Agreement and the transaction contemplated hereby; and/or (2) any agreement,
arrangement or understanding alleged to have been made by Seller or on Seller’s behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby. Notwithstanding anything to the contrary
contained herein, this Section 11.17 shall survive the Closing or any earlier termination of this Agreement. Seller shall
cause the Agent to deliver to Buyer at the Closing a release of lien permitted under O.C.G.A. Section 44-14-602.
11.18 Time Periods . As used in this Agreement, (1) a “day” is a calendar day and (2) a “business day” is a calendar
day other than a Saturday or Sunday upon which (a) the Office of the Clerk of the Superior Court of Gwinnett County,
Georgia is open and accepting documents for recording, (b) the United States Postal Service is delivering first class
mail, and (c) banks in Gwinnett County are generally open for business. If, pursuant to this Agreement, a party must act
by a particular time, or an act is effective only if done by a particular time, and the last date for the doing or
effectiveness of such act falls upon a day other than a business day, the time for the doing or effectiveness of such act
shall be extended to the next succeeding business day.
11.19 Further Assurances . Each of the parties shall execute such other and further documents and do such further
acts (provided the same do not expand or increase such party’s obligations hereunder or reduce or diminish such party’
s
rights hereunder) as may be reasonably required to effectuate the intent of this Agreement.
11.20 1099 Reporting . The parties agree that the Escrow Holder is hereby designated as the entity responsible for
filing a Form 1099 with the Internal Revenue Service promptly after the Closing as required under Internal Revenue
Code Regulation § 1.6045.4.
11.21 Confidentiality; Announcement . [Note: There is a non-disclosure agreement that the parties signed in
addition to this paragraph and the confidentiality agreement contained in the letter of intent. I think we should
have one controlling document. Let’s discuss.] The parties agree that the terms of this Agreement are confidential
and shall not, except to the extent required by Applicable Law, be intentionally released to other parties (other than the
each party’s attorneys, consultants, partners, accountants, lenders and advisors) prior to the Closing without the
approval of both Buyer and Seller. Except to the extent required by Applicable Law, the parties further agree that there
shall be no public announcement of the proposed transaction unless agreed to in writing by Buyer and Seller.
11.22 Tax Free Exchange . Subject to the terms and conditions of this Section, each party hereby agrees, provided at
least ten (10) business days prior written notice of the requested action has been delivered to the party being requested
to take action, to take such actions at the Closing (but at no time thereafter) as are reasonably necessary to help the
other to effectuate a like-kind exchange of the Property pursuant to Section 1031 of the Internal Revenue Code;
provided, however, that in no event shall (a) the non-requesting party be required to take title to or hold or possess any
property or to assume, suffer or incur any expense, obligation or liability in order to effectuate the like-kind exchange
or to assist the requesting party with its exchange, (b) either party’s exchange delay or extend the Closing Date or any
other time for performance of the requesting party’s obligations under this Agreement, or (c) shall the requesting party
be relieved in any manner of or from any of its representations, warranties, covenants, or other obligations under this
Agreement or any exhibit hereto. The requesting party, whether Seller or Buyer, agrees to indemnify, defend and hold
the other party harmless from and against any and all costs, expenses, damages, suits, claims and other liabilities of any
kind arising with regard to the requesting party’s effectuation of (or attempt to effectuate) or assistance with the
requesting party’s tax free exchange as described herein. Notwithstanding anything to the contrary provided herein, the
non-requesting party makes no representations or warranties as to the tax treatment for or any other consequence of the
transaction contemplated hereby or the ability of the transaction contemplated to qualify for like-kind exchange
treatment pursuant to Section 1031 of the Internal Revenue Code. In the event both parties desire to effectuate a like-
kind exchange as described herein, each party shall pay any and all costs associated with their respective transactions.
The indemnity set forth above in this Section shall survive the Closing and delivery and recordation of the Deed and
shall not be merged into the Deed.
11.24 Time of Essence . Time is of the essence of this Agreement.
11.25 Property Conveyed “As Is” . EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER DOES NOT, BY
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND SELLER SHALL NOT, BY THE