Circuit City 2005 Annual Report Download - page 140

4.7 Warranties True at Closing .
4.7.1 As a condition to Buyer’s obligation to purchase the Property, each and all of the representations and warranties
made by Seller in Section 10.2 below, shall be true in all material respects as of the Closing.
4.7.2 As a condition to Seller’s obligation to sell the Property, each and all of the representations and warranties made
by Buyer in Section 10.1 below, shall be true and correct in all material respects as of the Closing.
4.7.3 As a condition to Buyer’s obligation to purchase the Property, Seller shall have performed all covenants
(including, without limitation, putting the Property in the Closing Condition) on the part of Seller to be performed
under this Agreement as of the Closing.
4.7.4 As a condition to Seller’
s obligation to sell the Property, Buyer shall have performed all covenants on the part of
Buyer to be performed under this Agreement as of the Closing.
4.8 Termination of Agreements . As a condition to Buyer’s obligation to purchase the Property, (a) prior to the
Closing Seller shall have terminated or assigned to Buyer (with Buyer’s prior written consent) all maintenance,
management, security and other service contracts, if any, with respect to the Property, (b) prior to the Closing Seller
shall have terminated any leases affecting the Property (including, without limitation, Seller’s lease with its affiliate,
Global Equipment Company), and (c) Seller shall have no employees at the Real Property.
4.9 No Suits . As a condition to Buyer’
s obligation to purchase the Property, no judicial or administrative suit, action,
investigation, inquiry or other proceeding by any person shall have been instituted and remain pending that challenges
the validity or legality of any of the transactions contemplated by this Agreement or which, if adversely determined,
would materially adversely affect the value or use of the Property by Seller.
4.10 No Adverse Change . Subject to Section 11 below, as a condition to Buyer’
s obligation to purchase the Property,
no material adverse change shall have occurred in the physical condition of the Property from that existing as of the
Effective Date.
Notwithstanding anything to the contrary in this Agreement, the conditions precedent in Sections 4.1, 4.2, 4.3, 4.4, 4.5,
4.6, 4.7.1, 4.7.3, 4.8, 4.9 and 4.10 above are solely for the benefit of Buyer, and the condition precedent in Section
4.7.2 and 4.7.4 are solely for the benefit of Seller. No waiver of any such conditions precedent shall be effective unless
expressly set forth in writing by the party receiving the benefit of the condition. If any of the conditions precedent in
Sections 4.6, 4.7.1, 4.7.3, 4.8, 4.9 or 4.10 is not satisfied in accordance with its terms, Buyer may terminate this
Agreement upon five (5) business days’ prior written notice to Seller, in which event this Agreement shall terminate in
accordance with Section 11.14 below, unless during such five (5) business day period Seller shall cause such condition
(s) to be satisfied at Seller’s sole expense. If either of the conditions precedent in Sections 4.7.2 and 4.7.4 above is not
satisfied in accordance with its terms, Seller may terminate this Agreement upon five (5) business days’ prior written
notice to Buyer, in which event this Agreement shall terminate in accordance with Section 11.14 below, unless during
such five (5) business day period Buyer shall cause such condition(s) to be satisfied at Buyer’s sole expense. If Buyer
or Seller delivers a termination notice as provided in either of the preceding two (2) sentences, as applicable, then the
Closing Date shall be extended by up to five (5) business days.
5. Access . From the Effective Date through and until the first to occur of (a) the Closing or (b) the sooner
termination of this Agreement in accordance with its terms (such period being referred to herein as the “Pre-Closing
Period”), Buyer and Buyer’s agents, employees, contractors, engineers, consultants, subcontractors and other
representatives (collectively “Buyer Parties”)
shall be permitted to enter upon the Real Property during normal business
hours upon reasonable prior written notice to perform such inspections, examinations, tests and design work as Buyer
desires to determine the suitability of the Property for Buyer’s purposes including the suitability of the physical and
legal condition of the Property. Seller shall have a right to have a representative of Seller present during any entry onto
the Property by the Buyer Parties, or any of them. Buyer shall indemnify, defend and hold Seller free and harmless
from and against any and all claims, proceedings, costs, expenses (including, without limitation, reasonable attorneys’
fees and costs), and damages suffered or incurred by Seller as a result of any injury to persons or damage to property or
lien upon property caused by the activities of Buyer or any Buyer Parties while on the Real Property during the Pre-
Closing Period; provided, however, under no circumstances shall the foregoing be deemed to impose on Buyer or any