Circuit City 2005 Annual Report Download - page 138

ordinances, codes, regulations, rules, decrees, orders, laws or other governmental or quasi-governmental requirements
of any type or kind now or hereafter in effect (collectively, “Applicable Law”); (d) the Property Related Documents;
(e) the existence or non-existence, and availability or non-availability, of any governmental, quasi-governmental or
private approvals (including, without limitation, all permits, licenses, or other entitlements, if any, affecting the Real
Property or any use thereof; (f) the dimensions and specifications of the Real Property; (g) the zoning, building, and
land use restrictions affecting the Real Property; and (h) all other matters which might affect the value or desirability of
the Property or which Buyer deems relevant to its purchase of the Property, all as determined in Buyer’s sole and
absolute discretion.
If at any time during the Inspection Period Buyer decides that any of the matters described in clauses (a) through (h)
above are not acceptable to Buyer for any reason whatsoever, then Buyer may terminate this Agreement upon written
notice to Seller delivered prior to expiration of the Inspection Period, whereupon the Earnest Money shall be promptly
returned to Buyer. If Buyer exercises said termination right, then this Agreement shall terminate as of the time of
delivery of Buyer’s written notice. If prior to the expiration of the Inspection Period Buyer fails to deliver to Seller
written notice of its election to terminate this Agreement, then such failure shall be conclusively deemed to constitute
Buyer’s election not to terminate this Agreement pursuant to this Section 4.1 and the Earnest Money shall be deemed
non-refundable to Buyer except in the event of the failure of any condition to Closing set forth in 4.1, 4.2, 4.3, 4.4, 4.5,
4.6, 4.7.1, 4.7.3, 4.8, 4.9 or 4.10 below, or Buyer’s termination of this Agreement based on Seller’s default.
Buyer’s approval of the matters described in clauses (a) through (h) above shall not in any way negate or diminish any
covenant, representation or warranty made by Seller in this Agreement (or any agreement, instrument or other
document delivered to Buyer by Seller at the Closing pursuant to this Agreement) or any other right or remedy of
Buyer under this Agreement.
4.2 Additional Documents . If prior to the Closing Seller acquires actual knowledge of any engineering, seismic,
architectural, soils or environmental report, assessment or analysis (collectively, the “Additional Property Documents”
)
which contains information which a reasonable buyer of improved real property such as the Real Property would
consider material to its decision to purchase such real property and which was not already included in the Property
Related Documents, Seller shall promptly furnish a copy thereof to Buyer if Seller has possession of such document or
shall promptly provide Buyer with a description and the whereabouts (if known to Seller) of such document if Seller
does not have possession of such document. In such event, Buyer shall have a period of ten (10) business days from its
receipt of such an Additional Property Document to approve or disapprove the same by written notice to Seller, and if
Buyer delivers written notice of its disapproval this Agreement shall thereupon terminate. If Buyer fails to notify Seller
of its approval or disapproval prior to the expiration of said ten (10) business day period, then Buyer shall be deemed to
have accepted such documents and this condition precedent shall be deemed satisfied. If an Additional Property
Document is delivered to Buyer by Seller after a date which is ten (10) business days prior to the day before the
Closing Date, then the Closing Date shall be extended to that date which is twelve (12) business days after the date of
Buyer’s receipt of the Additional Property Document.
4.3 Title Matters
. Buyer has ordered a preliminary title commitment for the Real Property having an effective date no
earlier than sixty (60) days before the Effective Date (the “Preliminary Commitment”) and copies of all of title
exceptions listed therein. Prior to 5:00 p.m. EST on the third (3rd) business day following the Effective Date, Buyer
shall notify Seller in writing of any exception(s) to title shown on Schedule B to the Preliminary Commitment and/or
any matter(s) set forth on Schedule A to the Preliminary Commitment (“Schedule A Matter(s)”) which Buyer
disapproves. If by such time Buyer fails to notify Seller in writing that Buyer disapproves any exception to title on
Schedule B or any Schedule A Matter(s), Buyer shall be deemed to have accepted the same and this condition
precedent shall be deemed satisfied.
If Buyer notifies Seller of any disapproved exception(s) or Schedule A Matters (collectively, “Disapproved Matters”),
then Seller shall have three (3) business days (after receipt of Buyer’s written notice of Disapproved Matters) in which
to notify Buyer, in Seller’s sole and absolute discretion, either (a) that Seller will remove (or otherwise modify or cure
in a manner satisfactory to Buyer) the Disapproved Matters prior to the Closing or (b) that Seller will not remove (or
otherwise modify or cure) the Disapproved Matters (and Seller’s failure to do either (a) or (b) shall be conclusively
deemed to constitute Seller’s election not to remove or otherwise modify or cure any Disapproved Matters). If Seller
elects not to remove (or otherwise modify or cure in a manner satisfactory to Buyer) any Disapproved Matters, whether
by giving notice thereof or failing to give any notice at all, then Buyer shall have until 5:00 p.m. EST on the fifth (5th)