RECONCILIATION") ON OR BEFORE DECEMBER 31, 2005, AT WHICH TIME SELLER
SHALL SUBMIT ITS BILLINGS FOR SUCH RECONCILIATION TO THE TENANTS WHOSE LEASE
TERMS ARE IN EFFECT PRIOR TO THE CLOSING DATE.
THE TENANT NOTICE LETTERS
(DEFINED BELOW) SHALL ADVISE THE TENANTS THAT THEY SHALL RECEIVE SEPARATE AND
DISTRICT 2005 RECONCILIATION BILLINGS FROM EACH OF SELLER AND BUYER.
SELLER
SHALL DELIVER TO BUYER A TRUE AND COMPLETE COPY OF SELLER'S RECONCILIATION
PROMPTLY UPON COMPLETION THEREOF.
ADDITIONALLY, SIMULTANEOUSLY WITH SELLER'S
DELIVERY TO BUYER OF SELLER'S RECONCILIATION, SELLER SHALL ALSO DELIVER TO BUYER
COPIES OF THE BACK-UP DOCUMENTATION (E.G. GENERAL LEDGER) UPON WHICH SELLER
RELIED IN ITS PREPARATION OF SELLER'S RECONCILIATION.
IF BUYER THEN RECEIVES
FROM ANY OF THE TENANTS PAYMENTS THAT ARE SPECIFICALLY MARKED AS CONSTITUTING
SUCH TENANTS' RESPECTIVE PAYMENT DUE TO SELLER PURSUANT TO SELLER'S
RECONCILIATION, OR IF IT IS OTHERWISE REASONABLY APPARENT TO BUYER THAT A
PAYMENT RECEIVED BY BUYER FROM A TENANT IS INTENDED TO PAY THE SUM THAT SUCH
TENANT THEN OWES SELLER, PURSUANT TO SELLER'S RECONCILIATION, BUYER SHALL
PROMPTLY DELIVER SUCH PAYMENTS TO SELLER.
SELLER SHALL BOTH (I) MAKE
APPROPRIATE REPRESENTATIVES OF SELLER AVAILABLE, FROM TIME TO TIME, UPON BUYER'S
REQUEST, TO RESPOND TO TENANT INQUIRIES ABOUT SELLER'S RECONCILIATION; AND
(II) PROMPTLY DELIVER TO BUYER, UPON BUYER'S REQUEST, TRUE AND COMPLETE COPIES
OF ANY INVOICES REQUIRED TO EVIDENCE AND SUPPORT ANY CHARGES MADE TO A TENANT
PURSUANT TO SELLER'S RECONCILIATION IF SUCH TENANT CHALLENGES OR CONTESTS THE
RECONCILIATION BILLING
10
DELIVERED TO SUCH TENANT BY SELLER PURSUANT TO SELLER'S RECONCILIATION.
IN THE
EVENT OF ANY SUBSEQUENT ADJUSTMENTS IN THE FINAL DETERMINATION OF ADDITIONAL
RENT OWED BY TENANTS UNDER THE LEASES FOR CALENDAR YEAR 2005 BASED UPON THE
RESOLUTION BY SELLER, BUYER AND TENANT OF ANY DISPUTE OR CONTEST OF SUCH AMOUNTS
BROUGHT BY TENANT PURSUANT TO THE TERMS OF ITS LEASE, SELLER AND BUYER SHALL
PROMPTLY READJUST BETWEEN THEMSELVES THE ACTUAL AMOUNTS OWED FOR SUCH CALENDAR
YEAR, BASED UPON SUCH ADJUSTED DETERMINATION OF ADDITIONAL RENT OWED BY SUCH
TENANT.
IN ADDITION TO THE FOREGOING ARRANGEMENTS, SELLER HEREBY COVENANTS AND
AGREES THAT (1) PRIOR TO CLOSING, AND (2) WITH RESPECT TO CAPITAL EXPENDITURES
MADE BY SELLER AT OR FOR THE PROPERTY DURING THE TWO (2) YEAR PERIOD PRECEDING
THE CLOSING DATE,
AND (3) IF THOSE CAPITAL EXPENDITURES ARE BEING BILLED
THROUGH TO THE TENANTS ON AN AMORTIZED BASIS, SELLER SHALL DELIVER TO BUYER TRUE
AND COMPLETE COPIES OF SELLER'S GENERAL LEDGER REFLECTING THESE CAPITAL
EXPENDITURES AND THE AMORTIZATION THEREOF.
THE PROVISIONS OF THIS SECTION 4.2.7
SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE INTO ANY DOCUMENTATION DELIVERED
AT CLOSING.
4.2.8
CLOSING DATE.
IF THE EARNEST MONEY AND BALANCE OF
THE PURCHASE PRICE IS NOT DELIVERED TO THE TITLE INSURER, IN ITS CAPACITY AS
ESCROW AGENT FOR THE CLOSING, BEFORE 2:00 P.M. E.S.T. ON THE CLOSING DATE, THEN
THE PAYMENTS REQUIRED TO BE MADE BY SELLER OR BUYER UNDER THIS AGREEMENT SHALL
BE DETERMINED ASSUMING THAT THE CLOSING DATE OCCURRED ON THE DAY AFTER THE
ACTUAL CLOSING.