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(d) If the transaction contemplated hereby fails to close due to a default by Buyer, the Earnest Money (and the Additional Deposit, if applicable) shall be paid to Seller as liquidated damages hereunder (and not as a penalty) as Seller's sole and exclusive remedy, it being understood that Seller's actual damages in the event of such default are difficult to ascertain and that the Earnest Money (and the Additional Deposit, if applicable) represent the parties' best current estimate of the amount of such damages, and both parties shall be fully released from all further liability and obligations hereunder; (e) If the transaction contemplated hereby fails to close due to the default of Seller, the Earnest Money (and the Additional Deposit, if applicable) shall be returned to Buyer, and Buyer may terminate this Agreement, without prejudice, however, to all rights and remedies which Buyer may have against Seller, at law or in equity; The provisions of this Section 3.04 shall survive the termination of this Agreement. 3.05 ECR. With respect to the easements to be obtained by Buyer pursuant to Section 3.02(f) above, Buyer and Seller (and any lender who holds a mortgage or other security interest on Seller's Residual) shall agree in writing on the terms and conditions of an easement and restriction agreement (the "ECR") between the Property and Seller's Residual, the form of which shall be prepared by Buyer, providing for, inter alia, (a) A perpetual, non-exclusive easement from Seller, for the benefit of the Property, over and across the driveways and walkways on Seller's Residual (including but not limited to the "Critical Access Drives" depicted on the Site Plan, which Seller shall not alter, relocate, or close without the prior written consent of Buyer),for the purpose of vehicular (including Buyer's delivery tractor trailers) and pedestrian ingress, egress and access between and among the Property, Seller's Residual and the public roads; (b) A perpetual, non-exclusive easement from Buyer, for the benefit of Seller's Residual, over and across the driveways and walkways that are situated on the Property, for the purpose of vehicular and pedestrian ingress, egress and access between and among the Property, Seller's Residual and the public roads; (c) If and to the extent necessary, perpetual, non-exclusive easements over and across Seller's Residual for the benefit of the Property for the purposes of installing, using, maintaining, repairing and replacing service lines, connections and related improvements to provide utility services to the Property; (d) Intentionally deleted; (e) A perpetual, non-exclusive easement over and across Seller's Residual for the benefit of the Property for the purpose of maintaining the visibility of Buyer's building and signage on the Property, whereby the portion of Seller's Residual, generally depicted on the Site Plan, as the "No -Build Area" shall be restricted 4 B: S: