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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 SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING LIQUIDATED DAMAGES PROVISION BY INITIALING THIS PARAGRAPH IN THE APPROPRIATE SPACES PROVIDED BELOW. ' O tionees Initials foi Owners Initials P ' r 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) Taxes and Assessments. Owner shall pay any delinquent real property taxes and assessments relating to the Real Property. Non - delinquent real estate taxes and assessments imposed by any governmental authority shall be prorated as of the Closing Date based upon the tax bill(s) received for and applicable to the period(s) in which the Closing Date occurs; or, to the extent such tax bill(s) and applicable amount(s) are not available by the Closing Date, based on the most recent ascertainable assessed values and tax rates. Owner shall receive a credit for any prepaid taxes and assessments paid by Owner attributable to the period prior to the Closing to the end of the applicable taxing period. (b) Utility Charges. Prepaid water, sewer, and other utility charges shall be credited to Owner, and unpaid water, sewer, and other utility charges accruing prior to the Closing shall be credited to Optionee. Optionee shall credit to the account of Owner all refundable cash or other deposits posted by Owner with utility companies serving the Real Property or, at Optionee's option, Owner shall be entitled to receive and retain such refundable cash and deposits. (c) Contracts. Any amounts owing under the Contracts that are assigned to and assumed by Optionee pursuant to Paragraph 15(a) shall be prorated as of the Closing Date. (d) Additional Deposits. Any Non - Applicable Deposits made by Optionee pursuant to Paragraph 2(6) shall not be prorated. By way of example, if pursuant to Paragraph Option Agreement 20 Chemical 10.05. 2010 v.5 9