3. Buyer's Default. Section 6.1 of the Original Agreement is hereby deleted and
the following shall be substituted:
BUYER'S DEFAULT. IF THE SALE CONTEMPLATED BY THE AGREEMENT AND FOURTH AMENDMENT
IS NOT CONSUMMATED BECAUSE OF A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE
THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT AS AMENDED BY THE
FOURTH AMENDMENT, THEN: (A) THE AGREEMENT AND FOURTH AMENDMENT SHALL TERMINATE;
(B) THE DEPOSIT PLUS $250,000 OF THE SECOND ADDITIONAL DEPOSIT PLUS THE THIRD
ADDITIONAL DEPOSIT PREVIOUSLY PAID TO SELLER SHALL BE RETAINED BY SELLER AS
LIQUIDATED DAMAGES; AND (C) SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS
TO EACH OTHER EXCEPT THOSE THAT SURVIVE THE TERMINATION OF THE AGREEMENT AND
FOURTH AMENDMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE
EVENT OF A BREACH OF THE AGREEMENT AND FOURTH AMENDMENT BY BUYER WOULD BE
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS
$250,000 OF THE SECOND ADDITIONAL DEPOSIT AND THE THIRD ADDITIONAL DEPOSIT PLUS
INTEREST REPRESENTS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES
THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND
THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE
OF THE FOURTH AMENDMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER
REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. BUYER AND SELLER
AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT PLUS $250,000 OF THE SECOND
ADDITIONAL DEPOSIT AND THE THIRD ADDITIONAL DEPOSIT TOGETHER WITH ANY INTEREST
AND EARNINGS EARNED THEREON SHALL BE SELLER'S SOLE REMEDY, AT LAW AND IN EQUITY,
FOR BUYER'S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE
AGREEMENT AND FOURTH AMENDMENT. HOWEVER, NOTHING IN THIS SECTION SHALL
(i) PREVENT OR PRECLUDE SELLER'S RECOVERY OF REASONABLE ATTORNEYS' FEES OR OTHER
COSTS INCURRED BY SELLER PURSUANT TO SECTION 9.8 OF THE ORIGINAL AGREEMENT, OR
(ii) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF BUYER'S
INDEMNIFICATION OBLIGATIONS CONTAINED IN THE ORIGINAL AGREEMENT. SELLER HEREBY
WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS
AGREEMENT.
INITIALS
RH
SELLER
JW
BUYER
4. Unpaid Tenant Rents. The last sentence of Section 5.8.2(b) of the Original
Agreement is hereby deleted and the following shall be substituted in its place:
"Without limiting the foregoing, Seller specifically agrees not to undertake any
unlawful detainer action to collect unpaid rent or other sums (however
denominated) owed to Seller from any Tenant in possession of any space in the
Property at the time of any such collection effort, but Seller at its expense
shall have the right, after giving at least ten (10) days advance written notice
to Buyer, to take legal action against any Tenant to collect Unpaid Rent other
than an unlawful detainer action."
3
5. D&R Legal Fees. Seller has incurred legal fees to its law firm Donfeld &
Rollman ("D&R") in the amount of $1,100 for D&R's negotiation and preparation of
this