CLOSING DATE.
SUCH PRORATIONS SHALL INCLUDE, WITHOUT
LIMITATION:
4.2.1
RENTS.
(I)
CLOSING.
EXCEPT AS PROVIDED IN
SUBPARAGRAPH (II) BELOW, SELLER SHALL PAY OR CREDIT TO BUYER (WITH RESPECT TO
PERIODS FROM AND AFTER THE CLOSING DATE), IF, AS AND WHEN THE SAME SHALL BE
RECEIVED:
(A) ALL RENT PAID BY TENANTS UNDER THE LEASES FOR THE CALENDAR MONTH
IN WHICH THE CLOSING OCCURS, PRORATED FOR THE NUMBER OF DAYS DURING SUCH
CALENDAR MONTH FROM, INCLUDING AND AFTER THE CLOSING, AND (B) ALL PREPAID AND
OVERPAID RENTS OF ALL TENANTS UNDER THE LEASES, TO THE EXTENT ACTUALLY PAID BY
TENANTS TO SELLER ON OR PRIOR TO THE CLOSING DATE.
AT CLOSING, NO DELINQUENT
RENTS (AS DEFINED BELOW) OUTSTANDING FOR THE MONTH IN WHICH CLOSING OCCURS SHALL
BE PRORATED IN FAVOR OF EITHER SELLER OR BUYER.
BUYER WILL INDEMNIFY AND HOLD
HARMLESS SELLER, ITS SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY LIABILITY
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS) ARISING
FROM BUYER'S FAILURE TO ACCOUNT PROPERLY TO TENANTS FOR PREPAID AND OVERPAID
RENTS TO THE EXTENT ACTUALLY IDENTIFIED AS SUCH BY SELLER AND CREDITED TO BUYER
BY SELLER AT CLOSING; AND SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER, ITS
SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY LIABILITY (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND COSTS) ARISING FROM SELLER'S FAILURE
TO CREDIT TO BUYER, AT CLOSING, PREPAID AND OVERPAID RENTS ACTUALLY DELIVERED TO
SELLER BY TENANTS.
SUCH INDEMNITIES SHALL SURVIVE THE CLOSING DATE AND SHALL
NOT MERGE INTO ANY DOCUMENTATION DELIVERED AT CLOSING.
(II)
POST-CLOSING.
AFTER THE CLOSING, BUYER
SHALL MAKE GOOD FAITH EFFORTS TO COLLECT ALL UNPAID RENTS FOR ANY PERIOD PRIOR
TO THE CLOSING, PROVIDED THAT BUYER SHALL HAVE NO OBLIGATION TO INSTITUTE
LITIGATION OR TERMINATE ANY LEASES IN CONNECTION WITH ANY SUCH COLLECTIONS.
ANY
RENTS DUE AND OWING SELLER BEFORE THE CLOSING DATE BY
6
TENANTS UNDER THE LEASES THAT ARE UNPAID AT THE CLOSING, ARE HEREIN CALLED
"DELINQUENT RENTS".
FOLLOWING CLOSING, RENTAL AND OTHER PAYMENTS RECEIVED BY
BUYER OR SELLER FROM TENANTS SHALL BE FIRST APPLIED TOWARD ANY RENTS DUE AND
OWING TO BUYER FOR ANY PERIOD OF TIME FOLLOWING THE CLOSING; SECOND, TO THE
ACTUAL OUT-OF-POCKET COSTS OF COLLECTION INCURRED BY BUYER AND PAID TO THIRD
PARTIES; THIRD, SUCH RENTS SHALL BE APPLIED TOWARD THE PAYMENT OF ANY RENTS DUE
DURING THE MONTH OF CLOSING; AND FOURTH, TO ANY DELINQUENT RENTS OWED TO
SELLER.
SELLER SHALL HAVE AND RESERVES THE RIGHT TO PURSUE ANY REMEDY AVAILABLE
TO SELLER AT LAW OR IN EQUITY AGAINST ANY TENANT OWING DELINQUENT RENTS,
PROVIDED THAT SELLER SHALL IN NO EVENT INSTITUTE ANY PROCEEDING TO EVICT OR
DISPOSSESS A TENANT FROM THE PROPERTY.
BUYER MAY, BY WRITTEN NOTICE TO SELLER,
RESTRICT SELLER FROM COLLECTING SUCH DELINQUENT RENTS, BUT ONLY IF BUYER FIRST
PAYS SELLER SUCH DELINQUENT RENTS IN EXCHANGE FOR SELLER'S ASSIGNMENT TO BUYER
OF ALL OF SELLER'S RIGHTS AND CAUSES OF ACTION WITH RESPECT THERETO.
THE
PROVISIONS OF THIS 4.2.1(II) SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE INTO
ANY