THE CLOSING ARE SUBJECT TO CORRECTION IF WRITTEN NOTICE THEREOF
IS GIVEN WITHIN NINETY (90) DAYS AFTER THE CLOSING.
TO EXTENT THAT, FOLLOWING
THE ESCROW CLOSING, THE CLOSING IS DELAYED FOR ANY REASON, PURCHASER AND SELLER
SHALL ADJUST THE APPORTIONMENTS PURSUANT TO THIS
4
SECTION 5 AS OF THE ACTUAL CLOSING DATE (AS HEREINAFTER DEFINED) AND TENDER ANY
CORRECTIVE PAYMENTS AT THE CLOSING.
PURCHASER AND SELLER SHALL EACH ACT
PROMPTLY AND REASONABLY IN CONNECTION WITH DETERMINING THE PRORATIONS UNDER THIS
SECTION 5.
THIS SECTION 5 SHALL SURVIVE THE CLOSING.
(B)
EFFECT OF LEASEBACK LEASE.
IT IS ACKNOWLEDGED AND AGREED THAT
BECAUSE SELLER SHALL, AS OF THE CLOSING, LEASE BACK A PORTION OF THE PROPERTY
FROM PURCHASER, PURSUANT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF
THE LEASEBACK LEASE, CERTAIN ITEMS APPORTIONABLE BETWEEN BUYER AND SELLER
HEREUNDER SHALL ALSO BE APPORTIONABLE BETWEEN BUYER (AS LESSOR) AND SELLER (AS
LESSEE) PURSUANT TO THE TERM OF THE LEASEBACK LEASE.
THE PARTIES AGREE TO USE
REASONABLE EFFORTS TO "NET" THE EFFECT OF THE APPORTIONMENTS TO BE MADE AT
CLOSING BETWEEN BUYER AND SELLER PURSUANT TO THIS SECTION 5, AND BETWEEN BUYER
AND SELLER PURSUANT TO THE TERMS OF THE LEASEBACK LEASE.
(C)
RENTALS.
"RENTAL" OR "RENTALS" AS USED HEREIN INCLUDES FIXED
MONTHLY RENTALS, ADDITIONAL RENTALS, PERCENTAGE RENTALS, ESCALATION RENTALS,
RETROACTIVE RENTALS, OPERATING COST PASS-THROUGHS, UTILITY CHARGES, COMMON AREA
MAINTENANCE OR MANAGEMENT CHARGES, ADMINISTRATIVE CHARGES, AND OTHER SUMS AND
CHARGES PAYABLE BY SUBTENANTS UNDER THE SUBLEASES.
SUBJECT TO THE PROVISIONS OF
SECTION 5(D), SECTION 5(E) AND SECTION 5(F) BELOW, RENTALS SHALL BE PRORATED AT
THE CLOSING.
SELLER SHALL BE ENTITLED TO ALL RENTALS ACCRUING ON OR PRIOR TO
THE PRORATION DATE AND PURCHASER SHALL BE ENTITLED TO ALL RENTALS ACCRUING AFTER
THE PRORATION DATE.
(D)
DELINQUENT RENTALS.
RENTALS ARE DELINQUENT WHEN PAYMENT THEREOF
IS DUE ON OR PRIOR TO THE PRORATION DATE BUT HAS NOT BEEN MADE BY THE PRORATION
DATE (ANY SUCH RENTALS BEING "DELINQUENT RENTALS").
DELINQUENT RENTALS SHALL BE
PRORATED BETWEEN PURCHASER AND SELLER AS OF THE PRORATION DATE BUT SHALL NOT BE
PAID OR CREDITED UNTIL THEY ARE ACTUALLY COLLECTED BY PURCHASER OR SELLER, AS
THE CASE MAY BE.
ANY RENTALS COLLECTED BY PURCHASER OR SELLER, AS THE CASE MAY
BE, AFTER THE CLOSING, LESS ANY COSTS OF COLLECTION (INCLUDING REASONABLE
ATTORNEYS FEES) REASONABLY ALLOCABLE THERETO SHALL BE PROMPTLY APPLIED IN THE
FOLLOWING ORDER OF PRIORITY:
(I) FIRST, TO THE MONTH IN WHICH THE CLOSING DATE
OCCURS, TO BE PRORATED BETWEEN SELLER AND PURCHASER, (II) THEN, TO PURCHASER FOR
THE MONTH OR MONTHS FOLLOWING THE MONTH IN WHICH THE CLOSING DATE OCCURS,
PROVIDED THE RECEIVED RENTAL IS THEN DUE AND PAYABLE, AND (III) THEN, TO SELLER
FOR THE PERIOD PRIOR TO THE MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE
CLOSING DATE OCCURS.
PURCHASER SHALL USE REASONABLE EFFORTS TO COLLECT
DELINQUENT RENTALS BUT SHALL HAVE NO OBLIGATION TO COMMENCE A LEGAL PROCEEDING
TO COLLECT SUCH SUMS.
PURCHASER AND SELLER AGREE THAT ANY PAYMENTS DUE TO
SELLER OR PURCHASER, AS