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DEPOSITED WITH ESCROW HOLDER OR PAID DIRECTLY TO OWNER, AND SUCH DEPOSITS SHALL BE RETAINED BY OWNER AS LIQUIDATED DAMAGES, AND SHALL CONSTITUTE OWNER'S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT. OWNER'S RETENTION OF SUCH DEPOSITS AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY UNDER CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO OWNER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. OWNER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTIONS 1680 AND 3389. OWNER AGREES THAT THESE LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR OTHER REMEDY, INCLUDING WITHOUT LIMITATION SPECIFIC PERFORMANCE, TO WHICH OWNER OTHERWISE MIGHT BE ENTITLED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY. OPTIONEE AND OWNER SPECIFIC A LY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING LIQUID ED D A MAGES PROVISION BY INITIALING THIS PARAGRAPH IN THE APPRkr T SP a,,CE ROVIDED BELOW. / Optionee's Initials cA Owner's Initiate ' ' The above Liquidated Damages provisions shall not limit Optionee's liability to the extent set forth in this Agreement for any damage to persons or property to the extent caused by Optionee or any Optionee's Authorized Parties (as defined in Paragraph 9(a)), which liability shall be in addition to the liquidated damages referenced above. 7. Prorations. If the Closing occurs, all income, if any, and expenses of the Real Property shall be apportioned as of 12:01 a.m., on the day of Closing as if Optionee were vested with title to the Real Property during the entire day upon which Closing occurs. Notwithstanding the generality of the preceding sentence, specific items of income and expense shall be prorated as follows: (a) Collected Rent. All collected rent, collected tenant reimbursements for Operating Expenses (as defined in Paragraph 7(b) below), and other collected income for the month of Closing under the Lease shall be prorated as of the Closing Date. Optionee shall be credited with any rent and other income collected by Owner before the Closing Date but applicable to any period of time from and after the Closing Date. Uncollected rent and other income shall not be prorated on the Closing Date. Any rent received by Owner after the Closing Date with respect to time periods from and after the Closing Date shall be delivered to Optionee within five (5) days of Owner's receipt. Optionee shall apply rent and other income that is collected from the Tenant after the Closing Date first to the obligations then owing to Optionee for its period of ownership and to those reasonable attorneys' fees incurred by Optionee in collecting such amount, and shall remit the balance to Owner, to the extent attributable to the period prior to the Closing Date. Within ninety (90) days following the Closing Date, Owner may pursue collection as to any rent owing by the Tenant attributable to the period prior to the Closing, provided that Owner shall have no right to seek to terminate the Lease or Tenant's occupancy under the Lease in connection with its collection efforts. (b) Operating Expenses. Taxes, insurance, utilities (to the extent not paid directly by the Tenant), common area maintenance and other operating costs and expenses in Option Agreement 50 Chemical 10.5.2010 v. 8 9