NOTWITHSTANDING THE FOREGOING, (I)
ANY DELINQUENT TAXES, INTEREST AND/OR PENALTIES ON THE PROPERTY SHALL BE PAID AT
THE CLOSING BY THE SELLER; AND (II) ALL INTEREST AND PENALTIES ON REAL ESTATE
TAXES OR ASSESSMENTS DETERMINED TO BE OWED IN RESPECT OF THE TAX YEAR 2009
(IRRESPECTIVE OF WHETHER SUCH AMOUNTS RELATE TO PERIODS BEFORE, ON OR AFTER THE
CLOSING), WHETHER DETERMINED IN A SETTLEMENT OR LITIGATION, SHALL BE THE
RESPONSIBILITY OF SELLER (OTHER THAN ANY INTEREST AND PENALTIES ARISING AS A
RESULT OF ANY LATE PAYMENTS OF TAXES OWED BY PURCHASER AFTER THE CLSOING IN
RESPECT OF TAX YEAR 2009, WHICH SHALL BE PAID BY PURCHASER).
5.4.5
PROPERTY CONTRACTS.
AMOUNTS DUE UNDER PROPERTY CONTRACTS TO BE ASSUMED
BY PURCHASER AT CLOSING SHALL BE PRORATED UNDER SECTION 5.4.2.
SELLER SHALL PAY
ANY CANCELLATION FEES OR PENALTIES DUE TO ANY VENDOR UNDER ANY TERMINATED
CONTRACT AS A RESULT OF THE TERMINATION THEREOF.
5.4.6
LEASES.
(I) ALL COLLECTED RENT (WHETHER FIXED MONTHLY RENTALS, ADDITIONAL
RENTALS, ESCALATION RENTALS, RETROACTIVE RENTALS, OPERATING COST PASS-THROUGHS
OR OTHER SUMS AND CHARGES PAYABLE BY TENANTS UNDER THE LEASES), COLLECTED INCOME
AND EXPENSES FROM ANY PORTION OF THE PROPERTY RECEIVED AS OF THE CLOSING SHALL
BE PRORATED AS OF THE CLOSING DATE.
PURCHASER SHALL RECEIVE ALL COLLECTED RENT
AND INCOME ATTRIBUTABLE TO DATES FROM AND AFTER THE CLOSING DATE.
EXCEPT AS
PROVIDED IN CLAUSE (II) BELOW, SELLER SHALL
BE ENTITLED TO ALL COLLECTED RENT
AND INCOME ATTRIBUTABLE TO DATES PRIOR TO THE CLOSING DATE.
NOTWITHSTANDING THE
FOREGOING, NO PRORATIONS SHALL BE MADE AT THE CLOSING
IN RELATION TO EITHER (A)
NON-DELINQUENT RENTS WHICH HAVE NOT BEEN COLLECTED AS OF THE CLOSING DATE, OR
(B) DELINQUENT RENTS EXISTING, IF ANY, AS OF THE CLOSING DATE (THE FOREGOING (A)
AND (B) REFERRED TO HEREIN AS THE " UNCOLLECTED RENTS").
PURCHASER AGREES TO
BILL TENANTS OF THE PROPERTY FOR ALL UNCOLLECTED RENTS AND TO USE REASONABLE
EFFORTS TO COLLECT UNCOLLECTED RENTS (PROVIDED THAT (X) PURCHASER'S SOLE
OBLIGATION IN RESPECT OF SUCH REASONABLE EFFORTS SHALL BE TO BILL TENANTS FOR
SUCH UNCOLLECTED RENTS AND INCLUDE A CLAIM FOR UNCOLLECTED RENTS IN ANY CLAIMS
(INCLUDING, WITHOUT LIMITATION, CLAIMS MADE IN ANY LITIGATION) MADE BY PURCHASER
WITH RESPECT TO RENTS OWED DURING PURCHASER'S PERIOD OF OWNERSHIP OF THE
PROPERTY; AND (Y) IF PURCHASER COLLECTS ANY UNCOLLECTED RENTS TO WHICH SELLER IS
ENTITLED PURSUANT TO THIS CONTRACT, THEN PURCHASER MAY DEDUCT FROM THE AMOUNTS
TO BE PAID TO SELLER THE PRO RATA SHARE OF ALL OF PURCHASER'S COSTS AND EXPENSES
WHICH ARE INCURRED OR EXPENDED BY PURCHASER IN SUCH COLLECTION EFFORTS (BASED ON
THE RELATIVE PROPORTION THAT THE AMOUNTS TO WHICH
SELLER IS ENTITLED BEAR TO
THE TOTAL AMOUNTS COLLECTED)).
(II)
IN ADJUSTING FOR UNCOLLECTED RENTS ON THE CLOSING STATEMENT AT THE
CLOSING, NO ADJUSTMENTS SHALL BE MADE IN SELLER'S FAVOR FOR RENTS WHICH HAVE
ACCRUED AND ARE UNPAID AS OF THE CLOSING, BUT PURCHASER SHALL PAY SELLER SUCH
ACCRUED UNCOLLECTED RENTS AS AND WHEN COLLECTED BY PURCHASER IF APPLICABLE
PURSUANT TO THE FOLLOWING PROVISIONS