WHO OWE RENTS FOR PERIODS PRIOR TO THE CLOSING DATE, SHALL BE APPLIED
(I) FIRST, ** ******* ** ***** *** *** ***** ** ***** *** ******* **** ******
(THE "******* *****") (********* ***** **** ** ******* ** ************ *******),
(II) SECOND, ** ******* ** ***** ** ******* ** ** *** ******* **** ** *** ******
**** ***** ** ******* *** *** **** **** ** **** **** *** **** ******* **
********** ** **** ***** ** ******* (********* ** *** ****** ** *************)
*** ********* ** * ****** ** ***** ** * ********** ********** ****, (III) THIRD,
** ******* ** ***** **** *** *** *** ****** ********* *** ******* *****, AND
(IV) FOURTH, ** ******* ** ***** ** ******* *** ********* ******* ******** **
****** **** *****.
IF ANY TENANT SPECIFIES THAT ANY PAYMENT SHALL BE APPLIED TO
ANY DELINQUENT RENT, THEN THE PAYMENT WILL BE APPLIED AS DIRECTED BY SUCH
TENANT.
EACH SUCH AMOUNT, LESS ANY COSTS OF COLLECTION (INCLUDING REASONABLE
ATTORNEYS' FEES) REASONABLY ALLOCABLE THERETO, SHALL BE ADJUSTED AND PRORATED AS
PROVIDED ABOVE, AND THE PARTY WHO RECEIVES SUCH AMOUNT SHALL PROMPTLY PAY OVER
TO THE OTHER PARTY THE PORTION THEREOF TO WHICH IT IS SO ENTITLED.
WITH RESPECT
TO DELINQUENT AMOUNTS THAT HAVE NOT BEEN PAID TO THE APPLICABLE SELLER PRIOR TO
THE CLOSING DATE, FOR A PERIOD OF AT LEAST SIX (6) MONTHS FOLLOWING THE CLOSING
DATE BUYER SHALL USE COMMERCIALLY REASONABLE EFFORTS (BUT SHALL NOT BE REQUIRED
TO UNDERTAKE LITIGATION OR DISPOSSESSORY ACTIONS), INCLUDING, WITHOUT
LIMITATION, SENDING WRITTEN NOTICES TO TENANTS OF ANY ARREARAGES, TO COLLECT
SUCH AMOUNTS FROM TENANTS WHO OWE RENTS FOR PERIODS PRIOR TO THE CLOSING DATE.
SELLERS REPRESENT THAT AS OF THE EFFECTIVE DATE NO PERCENTAGE RENTS ARE
17
DUE PURSUANT TO THE LEASES.
TO THE EXTENT ANY SUCH PERCENTAGE RENTS BECOME DUE
AND PAYABLE PRIOR TO THE CLOSING DATE, THE PARTIES SHALL APPORTION SUCH
PERCENTAGE RENTS IN A MANNER REASONABLY ACCEPTABLE TO THE PARTIES.
(B)
PAYMENTS BY THE TENANTS UNDER THE LEASES FOR UTILITY COSTS, OPERATING
EXPENSES, INSURANCE COSTS AND OTHER ESCALATION CHARGES (EXCLUDING REAL ESTATE
TAX PAYMENTS AND DEPOSITS) (COLLECTIVELY, "EXPENSE CONTRIBUTIONS") SHALL BE
PRORATED AS OF THE PRORATION TIME BY ALLOCATING EACH SUCH PAYMENT RATABLY BASED
ON THE NUMBER OF DAYS IN THE PERIOD TO WHICH THE SAME APPLIES, AND SHALL BE PAID
UPON RECEIPT.
BUYER AND SELLERS HEREBY ACKNOWLEDGE AND AGREE THAT EXPENSE
CONTRIBUTIONS ARE BILLED TO, AND PAID BY, TENANTS ON THE BASIS OF ESTIMATES OF
THE EXPENSES WITH RESPECT TO WHICH EXPENSE CONTRIBUTIONS ARE PAYABLE.
SELLER
SHALL HAVE THE RESPONSIBILITY AND AUTHORITY TO HANDLE ALL 2005 EXPENSE
RECONCILIATIONS AND ALL PAYMENTS RECEIVED THEREFOR SHALL BELONG TO SELLER.
ON
OR BEFORE THE DATE THAT IS ONE HUNDRED EIGHTY (180) DAYS AFTER THE CLOSING DATE
(THE "RECONCILIATION DATE"), SELLERS AND BUYER SHALL AGREE TO A FINAL
RECONCILIATION OF UTILITY COSTS, OPERATING EXPENSES, INSURANCE COSTS AND OTHER
ESCALATION CHARGES (ESTIMATING IN THE PARTIES' REASONABLE JUDGMENT ANY AMOUNTS
THAT ARE UNKNOWN OR UNCERTAIN AS OF SUCH DATE ) FOR