AND, IN THE EVENT SUCH DEFAULT WAS THE
COMMISSION OF AN INTENTIONAL ACT BY SELLER OR ANY OF THE SELLER RELATED PARTIES
AFTER THE DATE HEREOF WHICH MAKES IT IMPOSSIBLE TO REAFFIRM ANY OF SELLER'S
REPRESENTATIONS OR WARRANTIES IN ANY MATERIAL RESPECT AS OF THE CLOSING DATE (AN
"INTENTIONAL REP DEFAULT") OR SELLER'S INTENTIONAL FAILURE TO CONVEY THE
PROPERTY TO BUYER AT CLOSING (EACH, AN "INTENTIONAL DEFAULT"), PAYMENT BY SELLER
OF BUYER'S COSTS (AS HEREINAFTER DEFINED), IN WHICH EVENT NEITHER PARTY SHALL
HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT AS PROVIDED IN SECTIONS
6.1, 9.3, 9.5 AND 9.9 BELOW, OR (2) ENFORCE SPECIFIC PERFORMANCE OF THIS
AGREEMENT AND THE RIGHT TO COLLECT BUYER'S EXPENSES INCURRED IN CONNECTION WITH
ENFORCING SPECIFIC PERFORMANCE. BUYER SHALL NOT HAVE ANY OTHER RIGHTS OR
REMEDIES HEREUNDER AS A RESULT OF ANY DEFAULT BY SELLER PRIOR TO CLOSING, AND
BUYER HEREBY WAIVES ANY OTHER SUCH REMEDY AS A RESULT OF SUCH A DEFAULT PRIOR TO
CLOSING HEREUNDER BY SELLER. IF THE SALE IS NOT CONSUMMATED DUE TO ANY DEFAULT
BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES,
AS ITS SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY AND ALL OTHER REMEDIES AT LAW OR
EQUITY EXCEPT AS PROVIDED IN THE SECOND TO LAST SENTENCE OF THIS PARAGRAPH. THE
PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO
CONSUMMATE THIS SALE DUE TO BUYER'S DEFAULT PRIOR TO CLOSING, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE
AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES
THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH
PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE
FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS
AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE
FOREGOING IS NOT INTENDED TO LIMIT BUYER'S OBLIGATIONS UNDER SECTION 6.1, 9.3,
9.5 AND 9.9. THE TERM "BUYER'S COSTS" SHALL MEAN THE AMOUNT OF BUYER'S
OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN NEGOTIATING THIS AGREEMENT,
CONDUCTING ITS REVIEW OF THE PROPERTY AND PROCEEDING TO CLOSING
3
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, TITLE EXAM,
ENVIRONMENTAL ASSESSMENT STUDIES AND REPORTS, SURVEY AND LOAN ASSUMPTION COSTS)
AND PREPARING FOR CLOSING, NOT TO EXCEED TWO HUNDRED AND FIFTY THOUSAND DOLLARS
($250,000.00).
INITIALS:
SELLER
RM
BUYER
RP
The Property is subject to a loan (the "Loan") to Seller in the outstanding
principal amount (as of the Effective Date) of approximately Two Hundred and
Fifty Million Dollars ($250,000,000) from LaSalle Bank National Association (the
"Lender") as evidenced by that certain Promissory Note from Seller to Lender
dated November 17, 2006 and secured by, among other things, that certain Deed of
Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated November 17, 2006 and recorded in the County of Alameda, State of
California on