however, that Contributor shall maintain the right to
access and copy the same for five (5) years after Closing.
The Real Property, the Personal Property, the Leases and the Intangible Property
are hereinafter collectively referred to as the "SPE Property"
1.2Agreed Value. The total Agreed Value for the Property (subject to adjustment
as provided herein) shall be $1,014,000.00. The Agreed Value is agreed by the
parties to be allocated $151,000,000 to Washington Mutual Campus; $183,000,000
to San Diego Tech Center; $355,000,000 to Wells Fargo Center; and $325,000,000
for One Cal Plaza; provided, however, that the Agreed Value for each of said
Properties shall be reduced by the aggregate principal balance of the loan
affecting said property as set forth on Exhibit J. The Agreed Value shall be
allocated to Contributor under the terms of the LLC Agreement as an "Agreed
Value" as that term is used in the LLC Agreement and shall be considered a
"Capital Contribution", as that term is defined in the LLC Agreement and
allocated to the Contributor as of the date of Closing.
1.3Contributor Remedies. In the event Investor breaches or defaults in its
obligations under this Agreement, such breach or default shall not have been
cured by Investor within ten (10) Business Days (as defined in the LLC
Agreement) after notice from Contributor, and Contributor is not in default
hereunder, Contributor shall have the right to terminate this Agreement. IF
CONTRIBUTOR TERMINATES THIS AGREEMENT PURSUANT TO THIS SECTION 1.3, CONTRIBUTOR
AND
3
INVESTOR AGREE THAT CONTRIBUTOR'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR
EXTREMELY DIFFICULT TO FIX. CONTRIBUTOR AND INVESTOR THEREFORE AGREE THAT, IN
SUCH EVENT, CONTRIBUTOR, AS CONTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY, SHALL BE
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF $25,000,000 (THE "CONTRIBUTOR
DAMAGE PAYMENT") TO BE PAID IN ACCORDANCE WITH THE BLOCKED ACCOUNT AGREEMENT,
AND FURTHER AGREE THAT INVESTOR SHALL BE RESPONSIBLE FOR ALL TITLE AND ESCROW
CANCELLATION CHARGES, IF ANY. UPON PAYMENT BY INVESTOR TO CONTRIBUTOR OF THE
CONTRIBUTOR DAMAGE PAYMENT AND ANY SUCH CANCELLATION CHARGES, THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE OF NO FURTHER FORCE
OR EFFECT AND NO PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER
OTHER THAN PURSUANT TO ANY PROVISION HEREOF WHICH EXPRESSLY SURVIVES THE
TERMINATION OF THIS AGREEMENT. INVESTOR AND CONTRIBUTOR HEREBY AGREE THAT THE
AMOUNT OF THE CONTRIBUTOR DAMAGE PAYMENT IS A FAIR AND REASONABLE ESTIMATE OF
THE TOTAL DETRIMENT THAT CONTRIBUTOR WOULD SUFFER IN THE EVENT OF INVESTOR'S
DEFAULT AND FAILURE TO DULY COMPLETE THE TRANSACTIONS DESCRIBED HEREIN.
CONTRIBUTOR IRREVOCABLY WAIVES THE RIGHT TO SEEK OR OBTAIN ANY OTHER LEGAL OR
EQUITABLE REMEDIES, INCLUDING THE REMEDY OF SPECIFIC PERFORMANCE. INVESTOR AND
CONTRIBUTOR ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF
THIS SECTION 1.3, AND BY THE INITIALS OF THEIR AUTHORIZED REPRESENTATIVES
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Investor's initials
RXP
Contributor's initials
DEL
Venture's
initials
DEL _
1.4Investor Remedies. Subject to the immediately following sentence, Investor's
sole and exclusive remedies