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@ '" 9.1.6 Taxes payable by Seller relating to operations of the Property, including, without limitation, business and occupancy taxes and sales taxes, if any; but excluding any taxes in the nature of gross receipts, taxes and/or income taxes; and 9 .1. 7 Such other items as are customarily apportioned between sellers and purchasers of real property and improvements located in the Commonwealth of Virginia. 9.2 Arrearages. If on the Closing Date any tenant of the Property is in arrears in the payment of rent or has not paid the rent payable by it for the month in which the Closing occurs (whether or not it is in arrears for such month on the Closing Date), any rents received by the City or Seller from such tenant after the Closing shall be applied to amounts due and payable by such tenant during the following periods in the following order of priority: (A) first, to the month in which the Closing occurred, prorated accordingly between Seller and the City; (B) second, to each pre-Closing month for which such tenant is in arrears as of the Closing Date; and (C) third, to each post-Closing month for which such tenant is in arrears as of the date of receipt of such rent, and if rents or any portion thereof received by Seller or the City after the Closing are due and payable to the other party by reason of this allocation, the appropriate sum, less a proportionate share of any reasonable attorneys' fees and costs and expenses expended in connection with the collection thereof, shall be promptly paid to the other party. If any tenants of the Property are required to pay percentage rent, escalation charges for real estate taxes, parking charges, operating expenses and maintenance escalation rents or charges, cost of living increases or other charges of a similar nature (collectively, "Additional Rents") and any Additional Rents are collected by the City from any tenant of the Property after the Closing Date, then the City shall promptly pay to Seller out of the first such sums received from such tenant the amount of all Additional Rents which are due and payable by such tenant with respect to any period prior to the Closing Date (whether or not such Additional Rents first became due and payable on or after the Closing Date), less a proportionate share of any reasonable attorneys' fees and costs and expenses expended in connection with the collection thereof. Notwithstanding the foregoing or anything to the contrary contained herein, following the Closing, Seller shall continue to have the right, in its own name, to demand payment of and to collect rent and Additional Rent arrearages owed to Seller by any tenant of the Property, which right shall include, without limitation, the right to continue or commence legal actions or proceedings against any tenant of the Property (other than the commencement of a dispossessory, summary or eviction proceeding), provided, however, that Seller has identified such tenants to the City in writing by the Closing Date. In the event Seller fails to institute legal actions against such delinquent tenants on or before the date which is ninety days after the Closing, Seller shall be deemed to have waived any further right to pursue any of its rights or remedies against such delinquent tenants thereafter. Provided Seller institutes legal actions against such delinquent tenants on or before ninety (90) days after the Closing, Seller shall have the continuing right to pursue such action against such tenants thereafter, subject to the provisions of this Section. The City agrees to cooperate with Seller in connection with all efforts by Seller to collect such rents and Additional Rents, including, without limitation, the delivery to Seller, upon demand, of any relevant books and records (including any rent or Additional Rent statements, receipted bills and copies of -19- Draft #4.1