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 OF WHICH WAS REPRESENTED BY
COUNSEL. IF SELLER TERMINATES THIS AGREEMENT AND RETAINS THE ENTIRE DEPOSIT AS
PROVIDED IN THIS SECTION 9.1, THE PARTIES SHALL BE RELIEVED OF ALL FURTHER
OBLIGATIONS AND LIABILITIES HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. IF,
HOWEVER, BUYER CHALLENGES SELLER'S RIGHT TO RETAIN THE ENTIRE DEPOSIT AS
LIQUIDATED DAMAGES, THEN THIS SECTION 9.1 SHALL SURVIVE TERMINATION AND BUYER
SHALL ALSO INDEMNIFY SELLER FOR ALL REASONABLE ATTORNEYS FEES INCURRED BY SELLER
TO COLLECT THE DEPOSIT. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES FOR ANY