this Agreement but does not exercise such right or (z) the
cost to repair such damage, as reasonably determined by Seller, is equal to or
less than the Damage Threshold, then this Agreement shall remain in full force
and effect and, at Closing, Seller shall assign to Buyer any insurance proceeds
Seller receives or is entitled to by reason of such damage (Buyer to receive a
credit at Closing for (i) any insurance deductible payable with respect to same
unless such deductible is paid by Seller at or prior to Closing and (ii) any
uninsured or underinsured amount in excess of Seller's property insurance
deductible unless such amount is in excess of Two Million Five Hundred Thousand
and No/100 Dollars ($2,500,000.00), in which case, Seller shall have the right
to terminate this Agreement by giving notice to Buyer within one (1) business
day after notifying Buyer of such damage, such termination having the same
effect as a termination pursuant to the last sentence of Section ).
ARTICLE 9.
BREACH OF AGREEMENT.
9.1 Seller's Remedies
.
IN THE EVENT THAT (A) BUYER MATERIALLY BREACHES THIS AGREEMENT AND THE BREACH
IS NOT CURED WITHIN ONE (1) BUSINESS DAY AFTER NOTICE THEREOF FROM SELLER OR (B)
THIS TRANSACTION FAILS TO CLOSE BY REASON OF BUYER'S DEFAULT HEREUNDER, THEN
SELLER SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY THEREFOR (EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE HEREIN), HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON
DELIVERING WRITTEN NOTICE THEREOF TO BUYER AND, IN A SITUATION WHERE THIS
TRANSACTION FAILS TO CLOSE BY REASON OF BUYER'S DEFAULT HEREUNDER AND SELLER
EXERCISES ITS TERMINATION RIGHT, ESCROW AGENT SHALL RELEASE TO SELLER, AND
SELLER SHALL BE ENTITLED TO RETAIN, THE DEPOSIT, AS LIQUIDATED DAMAGES IN LIEU
OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST
BUYER BY REASON OF SUCH FAILURE AND, IN THE EVENT THAT BUYER HAS MADE ANY
EXTENSION DEPOSIT, SELLER SHALL ALSO BE ENTITLED TO RETAIN SUCH AMOUNT AS
SEPARATE CONSIDERATION FOR ITS EXTENSION OF THE CLOSING DATE.
IN CONNECTION
WITH THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT (A) SELLER WILL INCUR
SIGNIFICANT EXPENSES RELATED TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT,
(B) THE PROPERTY WILL BE REMOVED FROM THE MARKET AND SELLER WILL FORGO
OPPORTUNITIES TO PURSUE OTHER POTENTIAL PURCHASERS, AND (C) FAILURE TO CLOSE
THIS AGREEMENT WILL RESULT IN OTHER IRREPARABLE HARM TO SELLER AND FISHER
COMMUNICATIONS.
THE PARTIES FURTHER AGREE THAT, FOR THE FOREGOING REASONS, IT
IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO
SELLER CAUSED BY THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT OR THE AMOUNT OF THE COMPENSATION SELLER SHOULD RECEIVE AS A
RESULT OF BUYER'S FAILURE TO CLOSE; THEREFORE THE PARTIES AGREE THAT THE DEPOSIT
REPRESENTS A REASONABLE ESTIMATION AS OF THE EFFECTIVE DATE OF SELLER'S
ANTICIPATED EXPENSES, LOSS AND OTHER POTENTIAL DAMAGES AND IS NOT A
PENALTY.
THE PARTIES ACKNOWLEDGE THAT THE FOREGOING REMEDY HAS BEEN FAIRLY AND
KNOWINGLY NEGOTIATED BY SOPHISTICATED BUSINESS ENTITIES, EACH