America Online 2010 Annual Report Download - page 163

day, or if Purchaser fails to perform any of its other obligations under this Agreement when obligated to do so, the Deposit shall be paid by Escrow
Agent to Seller as fixed, agreed and liquidated damages and as Seller's exclusive remedy for Purchaser's failure to consummate Closing, and Seller and
Purchaser shall be relieved from all liabilities and obligations under this Agreement (except for such liabilities and obligations which expressly survive
termination of, or closing on, this Agreement, as applicable). Seller and Purchaser agree that the forfeiture of the Deposit is not a penalty for Purchaser's
breach, but represents a fair and reasonable estimate of the damages that would be incurred by the Seller as a result of Purchaser's failure to
consummate Closing, such damages being difficult or impossible to ascertain.
8.2 Seller Default. If Seller fails to close the transaction contemplated hereby when obligated to do so, or if Seller fails to perform any of its other
obligations under this Agreement when obligated to do so, then Purchaser may elect one of the following as Purchaser's sole and exclusive remedy:
(i) terminate this Agreement by giving written notice of termination and the reasons therefor to Seller in which event Seller shall be liable for any
actual, documented, out-of-pocket due diligence costs and expenses incurred by Purchaser in connection with this transaction (provided, however, that
Seller's liability under this subsection (i) shall not exceed One Hundred Twenty-Five Thousand Dollars ($125,000)), and thereupon neither Seller nor
Purchaser shall have any further obligations or liabilities one to the other except as otherwise provided herein, and the documents and information
provided to Purchaser by Seller and/or Seller's agents shall be returned to Seller and the Deposit shall be returned to Purchaser; or (ii) only if the Seller's
failure to perform consists of a failure to convey the Property to Purchaser when required to do so under the provisions of this Agreement, hereby
waiving all other actions, rights or claims for damages, bring an equitable action for specific performance.
8.3 Delivery of Documents and Information. If either party terminates this Agreement pursuant to this Article 8, Purchaser shall return to Seller any
documents, reports or other information pertaining to the Property provided to or produced by or on behalf of Purchaser in connection with this
Agreement no later than ten (10) days after the date of such termination. Purchaser's obligations under the preceding sentence shall survive any
termination of this Agreement.
8.4 Limitation of Liability; Survival
8.4.1 Except for those provisions which expressly survive termination of, or closing on, this Agreement, as applicable, (i) none of the provisions of this
Agreement shall survive delivery of the Deed and (ii) all of the provisions of this Agreement shall be merged therein. Notwithstanding the foregoing,
the representations and warranties set forth in Section 6.1 and Section 6.2 of this Agreement shall survive settlement and delivery of the Deed for a
period of nine (9) months from the Closing Date and shall not be merged therein; provided,
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