Common use of Percentage Rent Clause in Contracts

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or (1) During the Term, Tenant will pay to Landlord, as provided below, the dollar amount by which six percent (6%) of Tenant’s “Gross Sales” (as hereinafter defined) exceeds the Monthly Rent paid under any by Tenant to Landlord during each month of the Leases Term (“Percentage Rent”) ). Calculations of Monthly Rent and Percentage Rent shall not include any consideration for operating expense contributions. Percentage Rent will be calculated and reported on a monthly basis, and shall be prorated between Buyer and Seller outside of Closing as paid in accordance with this Section 4(c). Tenant shall furnish or cause to be furnished to Landlord a statement of the Close monthly Gross Sales of Escrow on Tenant within ten (10) days after the close of each month and a Lease-by-Lease basisstatement of the annual Gross Sales of Tenant within thirty (30) days after the close of each fiscal year. Such statements will be certified as an accurate accounting of Tenant's Gross Sales by an authorized representative of Tenant. Within ten (10) calendar days after the end of each month, as follows; Tenant shall pay to Landlord the amount, if any, by which the product of six percent (a6%) Seller multiplied by the Gross Sales for such month exceeds the Monthly Rent paid by Tenant for such month. Annual reconciliation shall be entitled to receive verify or correct the portion of original reported Gross Sales but shall not recalculate the Percentage Rent on an annual basis. Within ninety (90) days after the close of each fiscal year, an accounting of Tenant's Gross Sales during said fiscal year and the amounts paid to Landlord as Monthly Rent and as Percentage Rent during each month of such fiscal year will be made by Landlord and, on such accounting, an adjustment will be made with respect to Percentage Rent as follows: if Tenant has paid to Landlord an amount greater than Tenant is required to pay under each Lease for the Lease Year terms of this Section 4(c), Landlord shall issue a check in which Closing occurs, which portion shall be the ratio amount of the number of such excess Percentage Rent within thirty (30) days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent such determination; or if Tenant has paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of an amount less than the Percentage Rent required to be paid under this Section 4(c), Tenant will pay to Landlord such difference within five thirty (530) days of the receipt thereofsuch determination. In the event that the On termination of this Lease, if Tenant only remits a partial paymentis not in default under this Lease, then Landlord will refund to Tenant the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver excess, promptly on Landlord's receipt of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant's request therefore.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow Closing on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five thirty (530) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller During the Term, Tenant shall pay to Landlord, as provided below, the dollar amount by which the percent specified in Section 1.11 ("Percentage Rate") of Tenant's "Gross Sales" (as hereinafter defined) exceeds the Minimum Annual Rent paid by Tenant to Landlord during each calendar year (or, at Landlord's election, its fiscal year), or portion thereof, of the Term ("Percentage Rent"). (b) Tenant shall furnish or cause to be furnished to Landlord a statement of the monthly Gross Sales of Tenant within ten (10) days after the close of each calendar month and a statement of the annual Gross Sales of Tenant within thirty (30) days after the close of each calendar year. Such statements shall be in a form mutually acceptable to Landlord and Tenant. Such statements shall be certified as an accurate accounting of Tenant's Gross Sales by an authorized representative of Tenant. Within ten (10) days after the end of each calendar month, Tenant shall pay to Landlord the amount, if any, by which the product of the Percentage Rate multiplied by the Gross Sales during the immediately-preceding calendar month exceeds the installment of Minimum Annual Rent which Tenant shall have paid for such month. Within ninety (90) days after the close of each calendar year, an accounting of Tenant's Gross Sales during said calendar year and the amounts paid to Landlord as Minimum Annual Rent and as Percentage Rent during such calendar year shall be made by Landlord and, upon such accounting, an adjustment shall be made with respect to said Percentage Rent as follows: If Tenant shall have paid to Landlord an amount greater than Tenant is required to pay under the terms hereof, Tenant shall be entitled to receive the portion a credit against Tenant's next payment of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was rent or other charge due to Landlord under the Lease to the total number of days from Tenant in the Lease Yearamount of such excess rent paid, and (b) Buyer or if Tenant shall receive have paid an amount less than the balance of Percentage Rent rent required to be paid under each Lease for the Lease Year. As used hereinhereunder, the term “Lease Year” means the twelve (12) month period as Tenant shall pay to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent Landlord such difference within five (5) days of the receipt thereofsuch determination. In the event that the Upon termination of this Lease, if Tenant only remits a partial paymentis not in default hereunder, then Landlord shall refund to Tenant the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver excess, promptly upon Landlord's receipt of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.'s request therefor. (c) The term "

Percentage Rent. Any percentage rents due or paid Percentage Rent (if any) payable by a Tenant --------------- under any of the Leases (“Percentage Rent”) each Lease shall be separately prorated between Buyer and Seller outside of Closing as of the Close of Escrow Proration Date between the Partners and Buyer in the manner provided in this Subsection 2.3(g)(iii). Such proration shall be made on a Lease-by-Lease basisbasis and shall be based upon the fiscal year set forth in each Lease for the determination of Percentage Rent. The actual fiscal year for Percentage Rent during which the Closing occurs is hereinafter referred to as the "Applicable Percentage Rent Fiscal Year". To the extent a Tenant makes monthly or quarterly interim payments on account of Percentage Rent, the Partners shall initially retain all such interim payments of Percentage Rent received by the Partners up to and including the Proration Date until a Closing Adjustment occurs and Buyer shall initially retain all such interim payments of Percentage Rent received by Buyer after the Proration Date until a Closing Adjustment occurs. At each Closing Adjustment, the Partners and Buyer shall prorate the total annual Percentage Rent due from a Tenant for such Tenant's Applicable Percentage Rent Fiscal Year as follows; : (a) Seller the Partners shall be entitled to receive the portion of the Percentage Rent under payable by each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease Tenant equal to the product obtained by multiplying the total annual Percentage Rent paid by each such Tenant by a fraction, the numerator of which is the number of days in the Lease Applicable Percentage Rent Fiscal Year up to and including the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year, ; and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide be entitled to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share portion of the Percentage Rent within five (5) days of the receipt thereof. In the event that the payable by each Tenant only remits a partial payment, then the amount to be remitted equal to the other party shall be its prorata share of product obtained by multiplying the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the total annual Percentage Rent paid by each such Tenant by a fraction, the Tenantnumerator of which is the number of days in the Applicable Percentage Rent Fiscal Year after the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year.

Percentage Rent. Any percentage rents due On or paid under any before the fifteenth (15th) day following the end of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for calendar month during the Lease Year Term (including the calendar month in which Closing occurswhich, which portion or concurrently with which, this Lease terminates), Tenant shall deliver to Landlord a written statement, signed and certified on behalf of Tenant by an accountant licensed by the State of Nevada or Tenant’s primary financial officer to be true and correct, setting forth separately (i) the ratio amount of Tenant’s Gross Sales made during the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Yearpreceding month, and (bii) Buyer shall receive a calculation of the balance projected annualized amount of Percentage Rent paid under each Lease Tenant’s Gross Sales (determined by multiplying the amount of Tenant’s Gross Sales for the prior month by twelve). If he projected annualized amount, based on a Lease Year. As used herein, Year to date basis exceeds the term “Lease Year” means the twelve (12threshold amount(s) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial paymentin Section 4.1(B), then Tenant shall, concurrently with the amount to be remitted to submission of such statement, pay Landlord the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or proportionate amount of the Percentage Rent paid due for such prior month. With respect to each calendar quarter during a Lease Year, such statement shall also include a calculation of the projected annualized Tenant’s Gross Sales, based on the total number of months elapsed from the beginning of such Lease Year through the end of the calendar month preceding the date of calculation, and the amount of Percentage Rent payable with respect to the immediately preceding calendar quarter shall be adjusted upward or downward, if applicable, to reflect the projected annualized aggregate of Tenant’s Gross Sales for all prior periods during such Lease Year. If such adjustment reflects an overpayment of Percentage Rent with respect to the portion of the Lease Year then ended, such excess shall be credited against the Minimum Monthly Rent and any Percentage Rent due for the next calendar month(s) of such Lease Year. If the calculation of the Percentage Rent for the last calendar quarter of the applicable Lease Year reflects a net overpayment of Percentage Rent for such Lease Year, then the amount of such excess shall be refunded to Tenant by Landlord within forty five (45) days after Landlord’s receipt and confirmation of such statement. Landlord shall confirm the accuracy of Tenant’s calculation of the annual rent due within such forty five (45) day period. The authorized deductions from Percentage Rent as set forth in the Lease shall be noncumulative and a computation of payment of the Percentage Rent shall be made separately for each Lease Year throughout the Lease Term without regard to Tenant’s Gross Sales, Percentage Rent or authorized deductions therefrom in connection with any other Lease Year. By way of illustration and not by way of limitation, attached hereto as Schedule 4.3 are examples of the method of calculation of Percentage Rent pursuant to this Section 4.3.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to or Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; : (a) Seller shall be entitled to receive the that portion of the Percentage Rent under each Lease for the Lease Year (hereinafter defined) in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord landlord under the Lease to the total number of days in the Lease Year; provided, however, Buyer shall be entitled to deduct from Seller’s portion thereof a prorata portion of any reasonable third-party costs incurred by Buyer in collecting same, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the PropertyTenant, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share (determined in accordance with the provisions hereof) of the Percentage Rent within five (5) business days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any Other than percentage rents due rent or overage rent paid under any of Leases with no minimum rent, percentage rent or overage rent (referred to herein as "PERCENTAGE RENT") under the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) by Lease basis with Seller shall be entitled to receive the portion of the total Percentage Rent paid under each Lease for the "Lease Year" in which the Close of Escrow occurs (the "SUBJECT LEASE YEAR") which is in the same ratio to total Percentage Rent paid with respect to such Lease Year in which Closing occurs, which portion shall be under the subject Lease as the ratio of (a) the number of days of said Lease Year in which Seller was Landlord the landlord under the subject Lease to (b) the total number of days in the said Lease Year, and (b) . Buyer shall receive be entitled to the balance of Percentage Rent paid under each Lease for with respect to the Subject Lease Year. As used herein, the term “Lease Year” "LEASE YEAR" means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt The foregoing proration shall be made as follows on a Lease by either Buyer or Lease basis: (a) subject to the balance of this subparagraph (iii), Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of shall retain all Percentage Rent from any tenant of the Property, the party receiving the same shall provide payments received by it on and prior to the other party Close of Escrow and Buyer shall retain all Percentage Rent payments received by it after the Close of Escrow; (b) as promptly as possible after the Closing Date Seller shall deliver to Buyer a statement of all Percentage Rent collected by Seller with respect to the Subject Lease Year on a Lease by Lease basis along with a copy of the Gross Sales Report Percentage Rent invoices and sales reports which support such collections, (c) for each Lease, not later than forty-five (45) days after the date the last Percentage Rent payment with respect to the Subject Lease Year is due, Buyer shall deliver to Seller a check statement of all Percentage Rent owed, collected or deemed collectable by Buyer with respect to such Lease along with a copy of the annual reconciliation of Percentage Rent owed under the subject Lease for the other party’s prorata share Subject Lease Year and the related sales information backup; and, (d) for each Lease, within thirty (30) days after the date the statement and reconciliation described in clause (c) above is delivered to Seller, Buyer shall pay to Seller or Seller shall pay to Buyer, whichever is applicable, the positive difference between (a) the total Percentage Rental collected by such party with respect to the Subject Lease Year and (b) the product of (x) the average daily Percentage Rental received with respect to the Subject Lease Year after taking into account the annual reconciliation and (y) the actual number of days such party was the owner of the Project during the Subject Lease Year (with Buyer being deemed to be the owner as of the Closing Date). If Percentage Rent is collected by Buyer from delinquent tenants only after enforcement or collection efforts, for the purpose of this proration, the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted collected by Buyer with respect to the other party shall be its prorata share of the partial payment. Nothing contained herein subject Lease shall be deemed or construed to require either Buyer to Seller to pay to be the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or actual amount of the Percentage Rent paid by the Tenantcollected less reasonable collection charges.

Percentage Rent. Any percentage rents due Percentage rent or paid overage rent (referred to herein as "Percentage Rent") under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) by Lease basis with Seller shall be entitled to receive the portion of the total Percentage Rent paid under each Lease for the "Lease Year" in which the Close of Escrow occurs (the "Subject Lease Year") which is in the same ratio to total Percentage Rent paid with respect to such Lease Year in which Closing occurs, which portion shall be under the subject Lease as the ratio of (a) the number of days of said Lease Year in which Seller was Landlord the landlord under the subject Lease to (b) the total number of days in the said Lease Year, and (b) . Buyer shall receive be entitled to the balance of Percentage Rent paid under each Lease for with respect to the Subject Lease Year. As used herein, the term “"Lease Year” " means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt The foregoing proration shall be made as follows on a Lease by either Buyer or Lease basis: (a) subject to the balance of this subparagraph, Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of shall retain all Percentage Rent from any tenant of the Property, the party receiving the same shall provide payments received by it on and prior to the other party Close of Escrow and Buyer shall retain all Percentage Rent payments received by it after the Close of Escrow; (b) as promptly as possible after the Closing Date Seller shall deliver to Buyer a statement of all Percentage Rent collected by Seller with respect to the Subject Lease Year on a Lease by Lease basis along with a copy of the Gross Sales Report Percentage Rent invoices and sales reports which support such collections, (c) for each Lease, not later than forty five (45) days after the date the last Percentage Rent payment with respect to the Subject Lease Year is due, Buyer shall deliver to Seller a check statement of all Percentage Rent collected by Buyer with respect to such Lease along with a copy of the annual reconciliation of Percentage Rent owed under the subject Lease for the other party’s prorata share Subject Lease Year and the related sales information backup; and, (d) for each Lease, within fifteen (15) days after the date the statement and reconciliation described in clause (c) above is delivered to Seller, Buyer shall pay to Seller or Seller shall pay to Buyer, whichever is applicable, the positive difference between (a) the total Percentage Rental collected by such party with respect to the Subject Lease Year and (b) the product of (x) the average daily Percentage Rental received with respect to the Subject Lease Year after taking into account the annual reconciliation and (y) the actual number of days such party was the owner of the Percentage Rent within five Project during the Subject Lease Year (5) days with Buyer being deemed to be the owner as of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the TenantClosing Date).

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to or Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or In addition to the Minimum Monthly Rental agreed to be paid under any of by Lessee, Lessee shall pay to Lessor, at the Leases time and in the manner specified in this Lease, an additional rental in an amount (hereinafter referred to as “Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as equal to five percent (5%) of the Close amount of Escrow Lessee’s gross sales made in, upon or from the business on a Lease-by-Lease basisthe Demised Premises during each calendar year of the term hereof, as follows; less (a) Seller shall be entitled to receive the portion aggregate amount of the Percentage Rent under each Lease Minimum Monthly Rental previously paid by Lessee for said calendar year, (b) all real property taxes and general and special assessments levied against the Lease Year Demised Premises as provided in which Closing occursArticle 3.1 hereinbelow and paid by Lessee or accrued, which portion shall be the ratio (c) all expenses for exterior maintenance and upkeep of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Yearbuilding and adjacent walkways and landscape areas, (d) all premiums for insurance required hereby, and (be) Buyer shall receive all similar costs and expenses, if any, arising under the balance terms of the CC&Rs (as defined in Article 20.1 hereinbelow). If the amount of any such deductions in any year exceeds the amount of Percentage Rent paid under each Lease payable for said year, then such excess shall be carried forward and applied to reduce the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment amount of Percentage Rent from payable in any tenant of the Property, the party receiving the same shall provide succeeding year or portion thereof should this Lease terminate prior to the other party expiration of a copy of the Gross Sales Report full year. The term “exterior maintenance and a check upkeep” is not to be construed to include any janitorial or regular maintenance service which is to be provided by Lessee or its assignee without deduction or offset, but rather is intended to include repairs and maintenance for the other party’s prorata share of the wear and tear. The Percentage Rent within five shall be paid quarterly (5as herein provided) days of the receipt thereofbased upon gross sales during such quarterly period. In the event that the Tenant only remits a partial paymentquarterly payments of Percentage Rent do not in the aggregate equal the Percentage Rent when calculated on an annual basis, then then, in such event, an adjustment shall be made within forty-five (45) days after the end of each year of the term hereof, and the party owing money shall promptly pay the amount to be remitted owed to the other party party. Percentage Rent shall be its prorata share paid quarterly on the twenty- fifth (25th) day of the partial paymentmonth immediately following the quarterly period in which the gross sales are made. Nothing contained herein Notwithstanding expiration or sooner termination of this Lease, Lessee shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of Lessor the Percentage Rent prior to receiving on the twenty-fifth (25th) day of the month immediately following expiration or sooner termination for the last quarterly period of the term of this Lease or fraction thereof. For the purposes of computing Percentage Rent for the first and last quarterly periods of the term or extended term of this Lease, if either is less than a full calendar quarter, the prorated Minimum Monthly Rental and other expenses enumerated above for such fractional period shall be deducted from the Tenant, and the acceptance or negotiation percentage of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenantsales realized during such fractional period.

Percentage Rent. Any percentage rents due or paid rent payments payable by tenants under any of the Leases (“"Percentage Rent”") with respect to the "Applicable Percentage Rent Period" (as hereinafter defined) shall be prorated between as set forth in this paragraph: All Percentage Rent payments received by Seller with respect to the Applicable Percentage Rent Period shall be retained by Seller until the year-end adjustments provided below and all Percentage Rent payments received by Buyer and Seller outside of Closing as with respect to the Applicable Percentage Rent Period shall be retained by Buyer until such year-end adjustments. Within thirty (30) days after receipt of the Close year-end gross sales report from the tenant under each Lease (i.e., the gross sales report provided by the tenant at the end of Escrow each lease year as provided under such tenant's Lease, but only to the extent that each such lease year begins prior to the Closing Date and ends on a Lease-by-Lease basisor after the Closing Date; such lease year period being herein called the "Applicable Percentage Rent Period"), as follows; (a) the aggregate amount of Percentage Rent payments shall be calculated and Seller shall be entitled to receive the portion its "allocable share" of the Percentage Rent under each such amount. As used herein, Seller's "allocable share" with respect to each Lease for means a fraction, the Lease Year in numerator of which Closing occurs, which portion shall be is the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Applicable Percentage Rent Period in which such Lease Yearis in effect prior to the Closing Date and the denominator of which is the aggregate number of days in which such Lease is in effect during the entire Applicable Percentage Rent Period. Within thirty (30) days following Buyer's receipt of the year-end gross sales report from each tenant after the end of such tenant's Applicable Percentage Rent Period, and (b) Buyer shall receive the balance of promptly and accurately bxxx such tenant for Percentage Rent paid under each Lease for payments in accordance with the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant terms of the Property, the applicable Lease and shall diligently pursue collection thereof (and each party receiving the same shall provide deliver to the other party a copy such information as either party shall reasonably request in connection therewith). To the extent that either party has retained or receives amounts in excess of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted which it is entitled hereunder, such party shall remit such excess amount to the other party shall be its prorata share on or before the date which is thirty (30) days after the year-end adjustment for each Lease (or if the applicable Percentage Rent payment has not yet been received, on or before the date which is thirty (30) days after the receipt of any such Percentage Rent payment for each Lease). Percentage Rent payments which are delinquent as of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party Closing Date shall not be deemed a waiver prorated on the Closing Date. All Percentage Rent payments shall first be applied to the most recently accrued obligation of such tenant and then to the delinquent Percentage Rent obligations of such tenant. Buyer shall promptly remit to Seller that party’s portion of delinquent Percentage Rent payments received on or after the Closing Date attributable to periods prior to the Closing Date, and subject to the adjustments set forth above, Seller shall promptly remit to Buyer that portion of any Percentage Rent payments received by it on, or after the Closing Date attributable to periods on or after the Closing Date. Buyer shall (1) promptly and accurately bxxx tenants for all Percentage Rent payments, (ii) bxxx tenants for all delinquent Percentage Rent payments in the same manner as Buyer bills tenants for in its normal bxxxxxxx (but Buyer shall have the right to contest the accuracy or amount of the bxxx tenants for delinquent Percentage Rent paid by payments and then current Percentage Rent payments on a separate basis), and (iii) exert reasonable efforts to pursue the Tenantcollection of all Percentage Rent payments (including any delinquent payments) and reasonably cooperate with Seller in collecting any delinquent Percentage Rent payments due Seller (but shall not be required to litigate, declare a default in any Lease, or incur any additional out of pocket costs in order to collect any such delinquent Percentage Rent payments due Seller). Seller hereby reserves its right to institute an action against any tenant for delinquent Percentage Rent payments attributable to periods prior to the Closing Date (but in no event shall Seller have any right to institute eviction proceedings with respect thereto, terminate any Lease or attach any tenant's property at the Property).

Percentage Rent. Any Commencing on the Effective Date, and in addition to Base Rent and Additional Rent, Subtenant agrees to pay to Sublandlord quarterly percentage rents due or paid under any of the Leases rent (“Percentage Rent”’) in arrears during the Term hereof in an amount equal to four percent (4%) of Subtenant’s Gross Revenue (as hereinafter defined) during such calendar quarter. Within thirty (30) days following the end of each calendar quarter, Subtenant shall furnish to Sublandlord an accurate statement of Gross Revenue for the immediately preceding calendar quarter (January-March, April-June, July-September and October-December) and Subtenant shall remit payment of such quarterly Percentage Rent at such time as Subtenant furnishes its statement of Gross Revenue. Additionally, Subtenant shall furnish to Sublandlord, within thirty (30) days immediately following the end of each calendar year, a statement of the Gross Revenue for the preceding calendar year, certified by an independent certified public accountant or an officer, director or member of Subtenant, in such form and with such detail as shall be prorated between Buyer reasonably satisfactory to Sublandlord, and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basisshall therewith pay to Sublandlord, as follows; (a) Seller shall be entitled to receive the portion of the any Percentage Rent under each Lease for the Lease Year in which Closing occursthen due. Should Subtenant fail to furnish to Sublandlord such quarterly statement of Gross Revenue, which portion shall be the ratio annual statement of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease YearGross Revenue, and Percentage Rent payment within the period required, Sublandlord may upon thirty (b30) Buyer shall receive days’ written notice from Sublandlord and providing Subtenant a reasonable time to provide the balance same, charge Subtenant interest at ten percent (10%) per annum on the amount of Percentage Rent paid under each Lease owed for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent that such payment is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) delinquent and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein Subtenant shall be deemed or construed to require either Buyer to Seller to pay to be in default under the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the TenantLease.

Percentage Rent. Any percentage rents due or paid under any of the Leases (In addition to Minimum Rent, Tenant agrees to pay to Landlord, as “Percentage Rent”, the following: A sum equal to percent ( %) shall be prorated between Buyer and Seller outside of Closing all “Gross Sales” (as hereinafter defined) in excess of the Close of Escrow on a Lease-by-Lease basis, “Breakpoint” (as follows; (ahereinafter defined) Seller shall be entitled to receive the portion of the Percentage Rent under during each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means (as hereinafter defined). The “Breakpoint” as referred to hereinabove shall be an amount equal to the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant quotient of the Property, Minimum Rent payable during the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereofapplicable Lease Year divided by or percent ( %). In the event that the Tenant only remits Minimum Rent for any Lease Year shall be reduced or abated for any reason whatsoever, the Breakpoint for such Lease Year shall be reduced by a partial payment, then the amount to be remitted percentage thereof equal to the other party percentage decrease in the Minimum Rent payable for such Lease Year. In the event that any Lease Year contains more or less than twelve (12) full calendar months, the Breakpoint shall be its prorata share of proportionately increased or decreased, as the partial paymentcase may be, for any such Lease Year. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share Computation of the Percentage Rent prior shall be made separately and independently for each Lease Year of the Lease Term, without regard to receiving the Gross Sales made during or rental paid for any other Lease Year. Percentage Rent from shall be determined and paid along with the monthly statements to be furnished pursuant to Paragraph 3 below on a monthly basis commencing when Tenant, and ’s Gross Sales first exceed the acceptance or negotiation of any check for Breakpoint during the Lease Year with respect to which Percentage Rent is being paid. Upon receipt by either party shall not be deemed a waiver Landlord of that partyeach annual statement of Tenant’s right Gross Sales furnished pursuant to contest Paragraph 3 below, if the accuracy or total amount of the Percentage Rent previously paid by Tenant for the period covered is less than the amount due Landlord for that period, any balance due Landlord shall be paid by Tenant at the time of delivery to Landlord of such statement. If the amount previously paid by Tenant exceeds the total amount of Percentage Rent required to be paid by Tenant during such Lease Year, the excess shall thereafter be credited by Landlord for Tenant’s account toward sums that are due hereunder by Tenant as they become due.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) during the Lease Year in which the Closing occurs shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow Closing on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent paid under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the PropertyProperty which relates to the Lease Year in which the Closing occurs, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow Closing on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to or Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“"Percentage Rent”") shall be prorated between Buyer and Seller outside of Closing Escrow as of the Close of Escrow Closing Date on a Lease-lease–by-Lease –lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord landlord under the each such Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “"Lease Year” " means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“"Gross Sales Reports”") and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata 's pro–rata share of the Percentage Rent for which payment was received within five ten (510) business days of the receipt thereof. In the event that the Tenant a tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata pro–rata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata pro–rata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenanttenants, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s 's right to contest the accuracy or amount of the Percentage Rent paid by the Tenanttenants.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller Parent outside of Closing as of the Close of Escrow Closing on a Lease-by-Lease basis, as follows; (a) Seller Parent shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Parent owned the Company and Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either (i) Buyer or Seller (following the Closing) or (ii) Parent of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller or Parent to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any percentage Percentage rents due or paid shall be separately prorated under any each Lease on the basis of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under fiscal year set forth in each Lease for the Lease Year payment of percentage rents. All interim percentage rent payments made before the Closing Date shall be retained by Seller until year-end adjustment and determination of Seller's allocable share thereof, except that interim payments received by either party for the month in which the Closing occurs, which portion Date occurs shall be the ratio of prorated as between Seller and Purchaser based upon the number of days in that month occurring before the Closing Date, and the party receiving the interim payment shall remit to (if received on or after the Closing Date) or credit (if received before the Closing Date) the other party its proportionate share. All amounts received by Purchaser on or after the Closing Date as interim payments of said percentage rents shall be retained by Purchaser until year-end adjustment and determination of Seller's allocable share thereof except to the extent provided below. Upon final determination of percentage rents owed by a tenant under its Lease Year for the fiscal year under that Lease in which the Closing Date occurs, Seller was Landlord under and Purchaser shall adjust between themselves amounts owed for such fiscal year on account of percentage rents, and Seller's allocable share of such percentage rents shall be equal to an amount determined by multiplying total percentage rents owed by the Lease to fraction whose numerator is the number of days in such fiscal year before the Closing Date, and whose denominator is the total number of days in such fiscal year. At the end of the fiscal year for each Lease Yearfor which percentage rents are due, Purchaser shall promptly xxxx the amounts due, if necessary. Within fifteen (15) days after collection, Purchaser shall remit to Seller its allocable share, less interim payments previously retained by Seller, if any. If Seller has retained amounts in excess of its allocable share, Seller, within fifteen (15) days after notice from Purchaser of the excess owed Purchaser, shall remit such excess to Purchaser. Any percentage rent with respect to Leases terminated before the Closing Date shall belong entirely to Seller, and Purchaser shall remit to Seller all payments made to Purchaser after the Closing Date on account of such percentage rents. Any percentage rents with respect to Leases commencing on or after the Closing Date shall belong entirely to Purchaser. (b) Buyer Reproration. Within one hundred twenty (120) days following the Closing Date, Purchaser shall receive prepare and present to Seller a calculation of the balance reproration of Percentage Rent paid Operating Expenses under each Lease clause (B) of Section 16(a)(3)(ii) and other items (including any Taxes which are the obligation of Seller hereunder), based upon the actual amount, or then best estimate, of such items charged to or received by the parties for the Lease Yearyear or other applicable fiscal period. As used herein, The parties shall use commercially reasonable efforts to agree upon and complete the term “Lease Year” means the twelve (12) month period as appropriate adjusting payment between them within 30 days after presentment to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) Purchaser's calculation. Seller may inspect Purchaser's books and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide records related to the other party a copy of Property to confirm the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereofcalculation. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party Such reproration shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenantfinal.

Percentage Rent. Any percentage rents due or paid Percentage Rent (if any) payable by a tenant under any of the Leases each Lease (“Percentage Rent”a "Tenant") shall be separately prorated between Buyer and Seller outside of Closing as of the Close of Escrow Proration Date between Seller and Buyer in the manner provided in this Subsection 2(c). Such proration shall be made on a Lease-by-Lease basisbasis and shall be based upon the fiscal year set forth in each Lease for the determination of Percentage Rent. The actual fiscal year for Percentage Rent during which the Closing occurs is hereinafter referred to as the "Applicable Percentage Rent Fiscal Year". To the extent a Tenant makes monthly or quarterly interim payments on account of Percentage Rent, the Seller shall initially retain all such interim payments of Percentage Rent received by the Seller up to and including the Proration Date until a Closing Adjustment occurs and Buyer shall initially retain all such interim payments of Percentage Rent received by Buyer after the Proration Date until a Closing Adjustment occurs. At each Closing Adjustment, the Seller and Buyer shall prorate the total annual Percentage Rent due from a Tenant for such Tenant's Applicable Percentage Rent Fiscal Year as follows; : (a) Seller shall be entitled to receive the portion of the Percentage Rent under payable by each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease Tenant equal to the product obtained by multiplying the total annual Percentage Rent paid by each such Tenant by a fraction, the numerator of which is the number of days in the Lease Applicable Percentage Rent Fiscal Year up to and including the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year, ; and (b) the Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide be entitled to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share portion of the Percentage Rent within five (5) days of the receipt thereof. In the event that the payable by each Tenant only remits a partial payment, then the amount to be remitted equal to the other party shall be its prorata share of product obtained by multiplying the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the total annual Percentage Rent paid by each such Tenant by a fraction, the Tenantnumerator of which is the number of days in the Applicable Percentage Rent Fiscal Year after the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year.

Percentage Rent. Any percentage rents due or paid Notwithstanding subparagraph (b) above, the proration of that portion of Additional Rents representing rent payable to the landlord by the tenant under any a Tenant Lease which is in excess of the Leases fixed or minimum rent thereunder and which is a percentage of the sales of such tenant (“Percentage Rent”"PERCENTAGE RENT") shall payable under each Tenant Lease for the lease year (the "CURRENT LEASE YEAR") thereunder in which the Closing Date occurs will be prorated between Buyer and as provided in this subparagraph (c). The amount of Percentage Rent to be allocated to Seller outside with respect to each Tenant Lease for the Current Lease Year with respect thereto (subject, however, to reduction as hereinafter provided) will be that amount equal to (i) the amount by which (A) the tenant's gross receipts (to the extent taken into account in determining Percentage Rent under such Tenant Lease) for that portion of such Current Lease Year occurring prior to (but not including) the Closing Date exceed (B) the "Allocable Base Amount" (as of defined below), multiplied by (ii) the Close of Escrow on a Lease-by-percentage specified in such Tenant Lease basis, as follows; (a) Seller shall to be entitled to receive the used in determining such tenant's Percentage Rent for such Current Lease Year. The "ALLOCABLE BASE AMOUNT" means that portion of the Percentage Rent under each "Base Amount" (as defined below) for such Current Lease Year determined by multiplying such Base Amount for the entire Current Lease Year by a fraction, the numerator of which is the number of days in such Current Lease Year occurring prior to and including the Closing Date and the denominator of which Closing occurs, which portion shall be the ratio of is the number of days of said such Current Lease Year. "BASE AMOUNT" is the amount specified in each Tenant Lease for such Current Lease Year that must be exceeded by the sales of the tenant during such Current Lease Year before such tenant will be obligated thereunder to pay Percentage Rent for such Current Lease Year. By way of example only, if (i) the Closing Date is July 1, 2004, (ii) the Current Lease Year with respect to a particular Tenant Lease commences January 1, 2004 and terminates December 31, 2004, (iii) the sales of the tenant under such Tenant Lease for such portion of such Current Lease Year occurring prior to and including July 1, 2004 are $600,000, and (iv) the Percentage Rent payable by such tenant for such Current Lease Year is 2% of such tenant's sales in which excess of $1,000,000, then (x) the Base Amount is $1,000,000, (y) the Allocable Base Amount is $498,630, and (z) Seller was Landlord is entitled to $2,027.40 (I.E., 2% of $101,370) of the Percentage Rent payable by such tenant for such Current Lease Year (subject, however, to reduction as hereinafter provided). In the event that, under the terms of the particular Tenant Lease, the tenant is entitled to any offset or credit against Percentage Rent (including any offset or credit by reason of or with respect to taxes, common area and mall contributions and tenant improvement costs), then the Percentage Rent allocated to Seller as aforesaid will be reduced by Seller's "allocable share" of the aggregate amount of such offsets and credits under each Tenant Lease for the Current Lease Year with respect thereto. Seller's "ALLOCABLE SHARE" with respect to a Tenant Lease will be a fraction, the total numerator of which is the number of days in the Current Lease Year under such Tenant Lease occurring prior to the Closing Date and the denominator of which is the number of days in such Current Lease Year, and (b) . Buyer shall receive will not be obligated to pay or credit Seller any sum on account of the balance proration of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) provided herein unless and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of until the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall prorated will be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent received by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the TenantBuyer.

Percentage Rent. Any Overage or percentage rents due (“Percentage Rents”) which are payable with respect to any period ending prior to the Closing Date or paid which have been accrued prior to the Closing Date shall not be apportioned as of the Closing Date. In lieu thereof, such amounts shall be apportioned, after the Closing Date, so that the amount thereof under any each of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) to which Seller shall be entitled entitled, as finally determined, shall be the entire amount thereof with respect to receive any fiscal period ending prior to the portion of the Percentage Rent under each Lease Closing Date, and, for the Lease Year applicable fiscal period in which Closing occurs, an amount which portion shall be bears the same ratio of to the total Percentage Rents as the number of days of said Lease Year in such fiscal period which Seller was Landlord under have elapsed prior to the Lease Closing Date bears to the total number of days in such fiscal period. At the Lease YearClosing, Seller shall deliver to Purchaser a schedule setting forth in reasonable detail the amount of Percentage Rents collected for the portion of the applicable fiscal period through the Closing Date. Following the Closing, Purchaser shall use reasonable efforts to collect any Percentage Rents which belong to Seller, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving remit the same shall provide to Seller promptly upon their receipt. All Percentage Rents collected by Seller or Purchaser with respect to the other party fiscal period in which Closing occurs shall be applied in the same ratio as Seller and Purchaser are entitled pursuant to this Section 4.3.2(b). Purchaser shall promptly deliver to Seller a copy of the Gross Sales Report and a check for the other party’s prorata share of the each xxxx relating to Percentage Rent within five (5) days of the receipt thereofRents submitted to tenants. In the event that the Tenant only remits a partial payment, then the amount to be remitted Notwithstanding anything contained herein to the other party contrary, Seller shall be its prorata share of retain the partial payment. Nothing contained herein shall be deemed or construed right after Closing to require either Buyer take such actions as it elects to collect delinquent rents, provided that Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver entitled to file or threaten to file any eviction or forcible entry and unlawful detainer action against any Tenant or seek or threaten termination of that party’s right to contest the accuracy or amount of the Percentage Rent paid any Lease in connection with any action brought by the TenantSeller with respect thereto.

Percentage Rent. Any percentage rents due A. Within 10 days after the end of each calendar month, Tenant shall submit to Landlord a statement certified by Tenant (by an authorized officer if Tenant is a corporation or paid under any by a partner if Tenant is a partnership) stating the Gross Sales (including an itemization of all claimed deductions therefrom) for such month. For that calendar month in which cumulative Gross Sales for the Leases (“calendar year in question shall exceed Base Gross Sales for such year, Tenant shall simultaneously therewith pay to Landlord, as Percentage Rent”) shall be prorated between Buyer and Seller outside , an amount equal to the product of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease Rate and (b) the difference between the cumulative Gross Sales for the Lease Year calendar year in which Closing occursquestion and the Base Gross Sales. Thereafter, which portion Tenant shall pay simultaneously with each monthly report to Landlord, as Percentage Rent, for the remainder of such calendar year, an amount equal to the product of (a) the Percentage Rent Rate and (b) the Gross Sales for each succeeding calendar month. For any partial calendar year at the beginning or end of the Term, the Base Gross Sales shall be pro-rated based on the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total actual number of days in such year. For the Lease Yearpurpose of this paragraph, and any partial calendar year at the beginning of the Term shall be deemed to commence on the day the Tenant first opens the Demised Premises for business. Within sixty (b60) Buyer shall receive days after the balance end of Percentage Rent paid under each Lease for calendar year (including any partial calendar year at the Lease Year. As used herein, beginning of the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”Term) and any full or partial payment of Percentage Rent from any tenant after the end of the PropertyTerm, the party receiving the same Tenant shall provide submit to the other party Landlord a copy of statement certified by an independent certified public accountant stating the Gross Sales Report and (including an itemization of all claimed deductions therefrom), for such calendar year or partial calendar year, as the case may be. During any period of time (computed on a check daily basis) when the Demised Premises is not open for business to the other party’s prorata share public when required under this Lease to be so open, then, for purposes of computing the Percentage Rent within five hereunder, Gross Sales for the period(s) of the immediately preceding calendar year corresponding to the periods of closure of the Demised Premises during the then current calendar year (5or in the case of a closing during the first year of the Term, Gross Sales for such year, or portion thereof, shall be increased proportionally to correspond to the periods of closure of the Demised Premises) shall be added to the Gross Sales for such current calendar year. Tenant shall require its subtenants, concessionaires and licensees to furnish similar statements as are required hereunder. All such statements shall be in such form and style and contain such details and breakdown as Landlord may reasonably require. If Tenant shall fail to prepare and deliver said statement of Gross Sales required herein, Landlord, after thirty (30) days written notice to Tenant and the Tenant's failure to cure within said thirty-day period, may do any and all of the receipt thereoffollowing: (i) elect to treat Tenant's failure to report as a default of this Lease, with respect to which Tenant shall not be entitled to any further notice or opportunity to cure; (ii) elect to make an audit of all books and records of Tenant which in any way pertain to or show Gross Sales and to prepare the statement or statements which Tenant has failed to prepare and deliver. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party The statement or statements so prepared by Landlord shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the conclusively binding on Tenant, and Tenant shall pay on demand all expenses of such audit and of the acceptance or negotiation preparation of any check for such statements and all sums as may be shown by such audit to be due as Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the TenantRent.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing Close of Escrow as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing Close of Escrow occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any In addition to the Base Rent, Tenant shall pay to Landlord, throughout the Lease Term and at all times in the manner hereinafter set forth without demand, notice, setoff or deduction, percentage rents rent (the "Percentage Rent") in the amount set forth below. Percentage Rent shall be due or paid under any and payable quarterly, but shall be calculated on an annualized basis and reconciled each calendar quarter on a year-to-date basis. Not later than the twentieth (20th) day of the Leases first calendar month following the end of each Percentage Rent Quarter (“as hereinafter defined) Tenant shall deliver to Landlord a written statement in form and detail reasonably acceptable to Landlord, showing month by month the Gross Sales (hereinafter defined) for the preceding Percentage Rent”) Rent Quarter (the "Percentage Rent Report"). Such Percentage Rent Report shall be prorated between Buyer certified to be correct in all material respects in the best information and Seller outside belief of Closing an authorized officer of Tenant. If aggregate Quarterly Gross Sales (as of hereinafter defined) for such Percentage Rent Quarter and any previous Percentage Rent Quarter in that calendar year exceed the Close of Escrow on a Lease-by-Lease basisaggregate Percentage Rent Base (hereinafter defined) for such year to date, as follows; (a) Seller then such Percentage Rent Report shall be entitled accompanied by payment to receive the portion Landlord of that sum which is equal to the Percentage Rent under each Lease for Multiplier (defined below) times the Lease Year in which Closing occursdifference between Percentage Rent Base and the Quarterly Gross Sales. If Tenant has overpaid Percentage Rent based on such year-to-date reconciliation, which portion Landlord shall refund such overpayment to Tenant within ten (10) days after Landlord's receipt of such Percentage Rent Report. A final reconciliation shall be calculated after the ratio final Percentage Rent Quarter of each calendar year, with Percentage Rent being determined on an annualized basis over the number of days of said Lease Year in which Seller was entire calendar year, and any payment being made by Landlord under the Lease or Tenant, as appropriate, to the total number of other within ten (10) days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Yearafter such determination. As used herein, the term “Lease Year” means "Gross Sales" shall mean the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller total of any gross sales reports and all charges for all purchases (“Gross Sales Reports”whether for cash or credit) of any and all food and beverage items, and any full and all goods, wares or partial payment of Percentage Rent from merchandise, including any tenant amounts or payments (whether cash or credit) for any vending machines, pay phones, etc. to the extent of the Propertyamount paid to Tenant as consideration for such service (as opposed to the absolute amount of merchandise and cash attributable to such merchandise; for example, the party receiving the same shall provide to the other party a copy amount of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then cash distributed from an ATM machine would not be included but the amount of rental paid to Tenant for such machine would be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenantincluded), and the acceptance any fees (whether cash or negotiation of credit) rentals or reimbursements for any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.private 8-

Percentage Rent. Any percentage rents due or paid Percentage Rent (if any) payable by a Tenant under any of the Leases (“Percentage Rent”) each Lease shall be separately prorated between Buyer and Seller outside of Closing as of the Close of Escrow Proration Date between Seller and Buyer in the manner provided in this Subsection 2.3(g)(iii). Such proration shall be made on a Lease-by-Lease basisbasis and shall be based upon the fiscal year set forth in each Lease for the determination of Percentage Rent. The actual fiscal year for Percentage Rent during which the Closing occurs is hereinafter referred to as the "Applicable Percentage Rent Fiscal Year". To the extent a Tenant makes monthly or quarterly interim payments on account of Percentage Rent, the Seller shall initially retain all such interim payments of Percentage Rent received by the Seller up to and including the Proration Date until a Closing Adjustment occurs and Buyer shall initially retain all such interim payments of Percentage Rent received by Buyer after the Proration Date until a Closing Adjustment occurs. At each Closing Adjustment, the Seller and Buyer shall prorate the total annual Percentage Rent due from a Tenant for such Tenant's Applicable Percentage Rent Fiscal Year as follows; : (a) Seller shall be entitled to receive the portion of the Percentage Rent under payable by each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease Tenant equal to the product obtained by multiplying the total annual Percentage Rent paid by each such Tenant by a fraction, the numerator of which is the number of days in the Lease Applicable Percentage Rent Fiscal Year up to and including the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year, ; and (b) the Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide be entitled to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share portion of the Percentage Rent within five (5) days of the receipt thereof. In the event that the payable by each Tenant only remits a partial payment, then the amount to be remitted equal to the other party shall be its prorata share of product obtained by multiplying the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the total annual Percentage Rent paid by each such Tenant by a fraction, the Tenantnumerator of which is the number of days in the Applicable Percentage Rent Fiscal Year after the Proration Date and the denominator of which is the number of days in the Applicable Percentage Rent Fiscal Year.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”"PERCENTAGE RENT") shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; : (a) Seller shall be entitled to receive the that portion of the Percentage Rent under each Lease for the Lease Year (hereinafter defined) in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord landlord under the Lease to the total number of days in the Lease Year; provided, however, Buyer shall be entitled to deduct from Seller's portion thereof a prorata portion of any reasonable third-party costs incurred by Buyer in collecting same, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” "LEASE YEAR" means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”"GROSS SALES REPORTS") and any full or partial payment of Percentage Rent from any tenant of the PropertyTenant, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s 's prorata share (determined in accordance with the provisions hereof) of the Percentage Rent within five (5) business days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s 's right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any Other than percentage rents due rent or overage rent paid under any of Leases with no minimum rent, percentage rent or overage rent (referred to herein as "PERCENTAGE RENT") under the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) by Lease basis with Seller shall be entitled to receive the portion of the total Percentage Rent paid under each Lease for the "LEASE YEAR" in which the Close of Escrow occurs (the "SUBJECT LEASE YEAR") which is in the same ratio to total Percentage Rent paid with respect to such Lease Year in which Closing occurs, which portion shall be under the subject Lease as the ratio of (a) the number of days of said Lease Year in which Seller was Landlord the landlord under the subject Lease to (b) the total number of days in the said Lease Year, and (b) . Buyer shall receive be entitled to the balance of Percentage Rent paid under each Lease for with respect to the Subject Lease Year. As used herein, the term “Lease Year” "LEASE YEAR" means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt The foregoing proration shall be made as follows on a Lease by either Buyer or Lease basis: (a) subject to the balance of this subparagraph (iii), Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of shall retain all Percentage Rent from any tenant of the Property, the party receiving the same shall provide payments received by it on and prior to the other party Close of Escrow and Buyer shall retain all Percentage Rent payments received by it after the Close of Escrow; (b) as promptly as possible after the Closing Date Seller shall deliver to Buyer a statement of all Percentage Rent collected by Seller with respect to the Subject Lease Year on a Lease by Lease basis along with a copy of the Gross Sales Report Percentage Rent invoices and sales reports which support such collections, (c) for each Lease, not later than forty-five (45) days after the date the last Percentage Rent payment with respect to the Subject Lease Year is due, Buyer shall deliver to Seller a check statement of all Percentage Rent owed, collected or deemed collectable by Buyer with respect to such Lease along with a copy of the annual reconciliation of Percentage Rent owed under the subject Lease for the other party’s prorata share Subject Lease Year and the related sales information backup; and, (d) for each Lease, within thirty (30) days after the date the statement and reconciliation described in clause (c) above is delivered to Seller, Buyer shall pay to Seller or Seller shall pay to Buyer, whichever is applicable, the positive difference between (a) the total Percentage Rental collected by such party with respect to the Subject Lease Year and (b) the product of (x) the average daily Percentage Rental received with respect to the Subject Lease Year after taking into account the annual reconciliation and (y) the actual number of days such party was the owner of the Project during the Subject Lease Year (with Buyer being deemed to be the owner as of the Closing Date). If Percentage Rent is collected by Buyer from delinquent tenants only after enforcement or collection efforts, for the purpose of this proration, the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted collected by Buyer with respect to the other party shall be its prorata share of the partial payment. Nothing contained herein subject Lease shall be deemed or construed to require either Buyer to Seller to pay to be the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or actual amount of the Percentage Rent paid by the Tenantcollected less reasonable collection charges.

Percentage Rent. Any percentage rents due or paid under any of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow Closing on a Lease-by-Lease basis, as follows; (a) Seller shall be entitled to receive the portion of the Percentage Rent under each Lease for the Lease Year in which Closing occurs, which portion shall be the ratio of the number of days of said Lease Year in which Seller was Landlord under the Lease to the total number of days in the Lease Year, and (b) Buyer shall receive the balance of Percentage Rent paid under each Lease for the Lease Year. As used herein, the term “Lease Year” means the twelve (12) month period as to which annual Percentage Rent is owed under each Lease. Upon receipt by either Buyer or Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant Tenant of the Property, the party receiving the same shall provide to the other party a copy of the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five ten (510) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the Tenant.

Percentage Rent. Any Overage or percentage rents due (“Percentage Rents”) which are payable with respect to any period ending prior to the Closing Date or paid which have been accrued prior to the Closing Date shall be apportioned as soon as reasonably practical (and in any event 30 days after) Closing, so that the amount thereof under any each of the Leases (“Percentage Rent”) shall be prorated between Buyer and Seller outside of Closing as of the Close of Escrow on a Lease-by-Lease basis, as follows; (a) to which Seller shall be entitled entitled, as finally determined, shall be the entire amount thereof with respect to receive any fiscal period ending prior to the portion of the Percentage Rent under each Lease Closing Date, and, for the Lease Year applicable fiscal period in which Closing ImanageDB:4161238.11 occurs, an amount which portion shall be bears the same ratio of to the total Percentage Rents as the number of days of said Lease Year in such fiscal period which Seller was Landlord under have elapsed prior to the Lease Closing Date bears to the total number of days in such fiscal period. At the Lease YearClosing, and (b) Buyer Seller shall receive deliver to Purchaser a schedule setting forth in reasonable detail the balance amount of Percentage Rent paid under each Lease collected for the Lease Yearportion of the applicable fiscal period through the Closing Date. As used hereinFollowing the Closing, Purchaser shall use reasonable efforts to collect any Percentage Rents which belong to Seller, and shall remit the term “Lease Year” means same to Seller promptly upon their receipt, to the twelve (12) month extent not credited to Seller at Closing, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents. All Percentage Rents collected by Seller or Purchaser with respect to the fiscal period in which Closing occurs shall be applied in the same ratio as Seller and Purchaser are entitled pursuant to which annual Percentage Rent is owed under each Leasethis Section 4.3.2(b). Upon receipt by either Buyer or Seller’s request, Purchaser shall promptly deliver to Seller of any gross sales reports (“Gross Sales Reports”) and any full or partial payment of Percentage Rent from any tenant of the Property, the party receiving the same shall provide to the other party a copy of each xxxx relating to Percentage Rents submitted to tenants. The provisions of this Section 4.3.2(b) shall survive the Gross Sales Report and a check for the other party’s prorata share of the Percentage Rent within five (5) days of the receipt thereof. In the event that the Tenant only remits a partial payment, then the amount to be remitted to the other party shall be its prorata share of the partial payment. Nothing contained herein shall be deemed or construed to require either Buyer to Seller to pay to the other party its prorata share of the Percentage Rent prior to receiving the Percentage Rent from the Tenant, and the acceptance or negotiation of any check for Percentage Rent by either party shall not be deemed a waiver of that party’s right to contest the accuracy or amount of the Percentage Rent paid by the TenantClosing.