Circuit City 2005 Annual Report Download - page 146

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Such addresses may be changed by notice to the other parties given in the same manner as above provided. Any notice,
demand or request sent pursuant to either clause (a) or (b) above, shall be deemed received upon such personal service
or upon dispatch by electronic means (provided, however, that a dispatch by facsimile transmission which occurs on
any day other than a business day shall not be deemed received until 9:00 a.m. EST on the next business day). Any
notice, demand, or request sent pursuant to clause (c) above shall be deemed received on the business day immediately
following deposit with the commercial mail service and, if sent pursuant to clause (d) above shall be deemed received
seventy two (72) hours following deposit in the U.S. mail.
11.5 Successors and Assigns; Assignment . This Agreement shall be binding upon and inure to the benefit of Seller
and Buyer and their respective estates, heirs, personal representatives, devisees, legatees, successors and permitted
assigns. Buyer shall not assign Buyer’s rights under this Agreement except to: (1) a subsidiary or affiliate of Buyer; (2)
any entity which is the result of a merger of Buyer, or into which Buyer is merged; or (3) an entity formed expressly for
the purchase of the Property which has as one of its general partners or members or managers, Buyer or an affiliate or
subsidiary of Buyer, without the prior written consent of Seller, which consent will not be unreasonably withheld or
delayed. In the event of an assignment as described foregoing, Buyer shall remain liable hereunder for any default of
the assignee and such assignee shall also assume all of the obligations under this Agreement. No assignment of Buyer’
s
rights hereunder shall relieve Buyer of its liabilities under this Agreement. This Agreement is solely for the benefit of
Seller and Buyer; there are no third party beneficiaries hereof.
11.6 Damage and Destruction; Condemnation .
11.6.1 Damage and Destruction. If before the Closing the Improvements are damaged by any casualty and the cost to
restore such Improvements is more than ONE MILLION DOLLARS ($1,000,000.00), then, whether or not covered by
Seller’s property insurance, Buyer shall have the right, by giving written notice to Seller within ten (10) business days
after Seller gives Buyer written notice of the occurrence of such casualty, to terminate this Agreement, in which event
this Agreement shall terminate in accordance with Section 11.14 below. If Buyer has the right to terminate this
Agreement pursuant to the preceding sentence but Buyer does not exercise such right, then this Agreement shall remain
in full force and effect without adjustment to the Purchase Price and, at the Closing, (a) all insurance proceeds actually
received by Seller (or paid to or for the benefit of Seller) in connection with such casualty (except to the extent
previously expended by Seller for repairs or restoration of the Improvements actually completed prior to the Closing)
plus the amount of any deductible under Seller’s property insurance policy shall be paid to Buyer by Seller through
Escrow, and (b) Seller shall unconditionally assign and transfer to Buyer of Seller’s right, title and interest in and to
any additional insurance proceeds otherwise payable to Seller with respect to the damaged or destroyed Improvements.
If before the Closing the Improvements are damaged by any casualty and the cost to restore such Improvements is ONE
MILLION DOLLARS ($1,000,000.00) or less and such cost is not fully covered by Seller’
s property insurance (subject
to any applicable deductible), then Buyer shall have the right, by giving written notice to Seller within ten (10) business
days after Seller gives written notice of the occurrence of such casualty to Buyer, to terminate this Agreement, in which
event this Agreement shall terminate in accordance with Section 11.14 below, unless (a) Seller, at its expense, fully
repairs and restores the damaged Improvements prior to the Closing, or (b) Seller notifies Buyer in writing within said
ten (10) day business period that Buyer will receive a credit at the Closing against the Purchase Price in the amount of
the cost to fully repair and restore the damaged Improvements as reasonably determined by Seller and Buyer. In the
event of either (a) or (b), above, except as provided in (b), there shall be no adjustment to the Purchase Price.
If before the Closing the Improvements are damaged by any casualty and the cost to restore such Improvements is ONE
MILLION DOLLARS ($1,000,000.00) or less, and such damage is fully covered by Seller’s property insurance
(subject to any applicable deductible), then this Agreement shall remain in full force and effect without adjustment to
the Purchase Price, subject, however, to the following: (a) as to any insurance proceeds for such casualty that have not
actually and unconditionally been paid over to Seller prior to the Closing, at the Closing Seller shall assign to Buyer all
of Seller’s right, title and interest in and to such proceeds; and (b) as to any insurance proceeds for such casualty that
have been actually and unconditionally paid over to Seller (or paid to or for the benefit of Seller) prior to the Closing,
the amount of such proceeds shall be a credit to Buyer against the Purchase Price for the Property, and (c) the amount
of any deductible under Seller’s property insurance policy shall be a credit to Buyer against the Purchase Price for the
Property.