Circuit City 2005 Annual Report Download - page 147

Seller shall give notice to Buyer promptly after the occurrence of any casualty damage to the Improvements. Buyer
shall have a period of ten (10) business days (or such shorter period as Buyer may elect by giving notice to Seller) after
Seller has given the notice to Buyer required by this Section 11.6.1 to evaluate the extent of the damage and make the
determination as to whether to terminate this Agreement. If necessary, the Closing shall be postponed until Seller has
given the notice to Buyer required by this Section 11.6.1 and the period of ten (10) business days described in this
Section 11.6.1 has expired. With respect to any termination right in favor of Buyer in this Section 11.6.1, unless Buyer
expressly elects in writing to terminate this Agreement pursuant to such right, Buyer’s failure to notify Seller of its
election to terminate shall be conclusively deemed a waiver of Buyer’
s election to terminate this Agreement pursuant to
this Section.
Seller assumes all risks and liability for damage to or injury occurring to the Property by fire, storm, accident, or any
other casualty or cause until the Closing has been consummated.
11.6.2 Condemnation. If prior to the Closing proceedings are commenced against a “material portion” of the Real
Property for the taking by exercise of the power of eminent domain (“Taking”), Buyer shall have the right, by giving
notice to Seller within ten (10) business days after Seller gives written notice of the commencement of such proceeding
to Buyer to terminate this Agreement pursuant to this Section 11.6.2, in which event this Agreement shall terminate in
accordance with Section 11.14 below. For purposes hereof, a “material portion” of the Real Property shall mean any of
the access points from the Real Property to a public street, any portion of the roadways or parking areas located on the
Real Property, and/or any portion of the Improvements. 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 unchanged and in full
force and effect and, at the Closing, the condemnation award (or, if not theretofore received, the right to receive such
award) payable on account of the Taking shall be assigned and transferred to Buyer. Seller shall give notice to Buyer
promptly after Seller’s receipt of notice of the commencement of any proceedings for the Taking of the Real Property
or any part thereof. Buyer shall have a period of ten (10) calendar days (or such shorter period as Buyer may elect by
giving notice to Seller) after Seller has given the notice to Buyer required by this Section 11.6.2 to evaluate the extent
of the taking and make the determination as to whether to terminate this Agreement. If necessary, the Closing shall be
postponed until Seller has given the notice to Buyer required by this Section 11.6.2 and the period of ten (10) business
days described in this Section 11.6.2 has expired.
11.7 Applicable Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Georgia, and according to its fair meaning, and not in favor of or against any party.
11.8 Entire Agreement; Amendment . This Agreement (which includes all exhibits hereto) embodies the entire
agreement and understanding between the parties relating to the subject matter hereof, and all prior negotiations
(including, without limitation, that certain letter of intent from Buyer to Seller dated November 7, 2005 and signed by
Seller on November 9, 2005), agreements and understandings, oral or written, are hereby revoked, cancelled and
rescinded and are all merged herein and superseded hereby. Any amendment to this Agreement, including, without
limitation, any oral modification supported by new consideration, must be reduced to writing and signed by both parties
in order to be effective.
11.9 Counterparts; Waiver . This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement may
be executed by facsimile signature and any such signature shall be effective as if it the original signature. Except as
otherwise specifically provided herein, and except where a party is afforded a specific deadline for electing to terminate
this contract and fails to timely notify the other party of such termination, any waiver of the performance of any
covenant, condition or promise by either party, in order to be effective, must be in a writing signed by the party who
has allegedly waived the covenant, condition or promise in question. The waiver by either party of a breach of a
provision of this Agreement shall not be deemed a waiver of any subsequent breach whether of the same of another
provision of this Agreement.
11.10 Severability . Should any part, term or provision of this Agreement or any document required herein to be
executed or delivered be declared invalid, void or unenforceable, all remaining parts, terms and provisions hereof shall
remain in full force and effect and shall in no way be invalidated, impaired or affected thereby.
11.11
Interpretation
. The neuter gender includes the feminine and masculine, and vice
-
versa, and the singular