Circuit City 2005 Annual Report Download - page 139

business day after the day Seller received Buyer’s written notice of Disapproved Matters (the “Final Title Response
Date”) to either (a) terminate this Agreement by written notice to Seller or (b) accept title subject to the Disapproved
Matters. If Buyer gives Seller such written notice of termination prior to 5:00 p.m. EST on the Final Title Response
Date, then this Agreement shall thereupon terminate without further action by all parties. If by such time Buyer fails to
give Seller written notice of Buyer’s acceptance of the Disapproved Matters or Buyer’s election to terminate this
Agreement, such failure shall be conclusively deemed to constitute Buyer’s election not to terminate this Agreement
pursuant to this Section 4.3. Any agreement of the parties on exception(s) to title arrived at after written disapproval by
Buyer shall be set forth in writing expressly listing the permitted exception(s) to title that appear on the Preliminary
Commitment. The exception(s) to title approved by Buyer as provided in this Section 4.3 are collectively referred to
herein as the “Permitted Exceptions”.
4.4 Survey Matters . Buyer has ordered an ALTA/ACSM survey of the Real Property or an update of the
ALTA/ACSM survey (if any) of the Real Property provided to Buyer by Seller as part of the Property Related
Documents (in either case, the “Survey”) from a surveyor acceptable to Buyer, the cost of which shall be paid by
Buyer. Upon completion of the Survey, Buyer will instruct the surveyor to promptly deliver a copy of the Survey to
Seller and to Escrow Holder so that Escrow Holder may issue and deliver to Seller and Buyer as soon as practicable a
supplemental preliminary title commitment (the “Supplemental ALTA Commitment”) which includes such additional
exceptions as may be disclosed by the Survey (the “Survey Exceptions”). Not later than 5:00 p.m. EST on the fourth
(4th) business day after Buyer’s receipt of the Supplemental ALTA Commitment or the tenth (10th) business day after
the Effective Date, whichever occurs first, Buyer may provide Seller with written notice of any Survey Exceptions
which Buyer disapproves.
If Buyer gives Seller written notice of Buyer’s disapproval of any Survey Exceptions, Seller shall have until 5:00 p.m.
EST on the second (2
nd
) business day after Seller’s receipt of Buyer’s written notice (of disapproval) to notify Buyer,
in Seller’s sole discretion, (a) that Seller will remove such disapproved Survey Exceptions at Seller’s expense prior to
the Closing or (b) that Seller will not remove such disapproved Survey Exceptions (and Seller’s failure to do either (a)
or (b) shall be conclusively deemed to constitute Seller’
s election not to remove any Survey Exceptions disapproved by
Buyer). If Seller elects not to remove any disapproved Survey Exceptions, whether by giving notice thereof or failing to
give notice, then Buyer shall have until 5:00 p.m. EST on the fourth (4th) business day after Seller’s receipt of the
aforesaid written notice of disapproval from Buyer to either (a) terminate this Agreement by written notice to Seller or
(b) accept title subject to the disapproved Survey Exceptions. If Buyer gives Seller such written notice of termination
prior to such time, then this Agreement shall thereupon terminate without further action by the parties. If by such time
Buyer fails to give Seller written notice of Buyer’s acceptance of the disapproved Survey Exceptions or Buyer’
election
to terminate this Agreement, such failure shall be conclusively deemed to constitute Buyer’s election not to terminate
this Agreement pursuant to this Section 4.3. Any Survey Exceptions approved by Buyer as provided in this Section 4.4
shall also be deemed “Permitted Exceptions”.
4.5 Removal of Monetary Liens and Unpermitted Exceptions . Notwithstanding anything to the contrary herein,
Seller shall discharge and remove, at its sole expense prior to or concurrently with the Closing, (a) any mortgages,
deeds of trust, or other monetary liens against the Property or any part thereof, (b) any mechanic’s or materialman’s
liens against the Property or any part thereof unless the same are the result of labor, materials or work performed on the
Property by Buyer, and (c) any lien, encumbrance or other title exception (not created by Buyer) against the Property or
any part thereof that arises or is discovered after determination of the Permitted Exceptions and prior to the Closing.
Without limiting the foregoing, Seller shall pay prior to or concurrently with the Closing any prepayment fee, penalty
or other charges or fees associated with the pay-off or extinguishment of any indebtedness secured by the Property or
any part thereof. Buyer’s obligation to purchase the Property is conditioned upon Seller’s compliance with this Section
4.5.
4.6 Buyer’s Title Insurance . Buyer’s obligation to purchase the Property is conditioned upon Escrow Holder’s
issuance to Buyer at the Closing of an American Land Title Association extended coverage owner’s policy of title
insurance (10/17/92 form) naming Buyer as insured, in the amount of the Purchase Price, with an effective date no
earlier than the date of filing of the Deed, insuring that Buyer owns fee simple title to the Property subject only to the
Permitted Exceptions, and containing no survey exceptions other than those approved by Buyer pursuant to Section 4.4
of this Agreement (“Buyer’s Title Policy”). Buyer’
s Title Policy may also include such endorsements as may be desired
by Buyer but the availability or issuance of such endorsements shall not be a condition to Buyer’s obligation to
purchase the Property.