IN THE YEAR OF CLOSING IS NOT
ASCERTAINABLE AS OF THE CLOSING DATE, PRORATION OF TAXES SHALL BE BASED UPON THE
MOST CURRENTLY AVAILABLE BILL FOR SUCH TAXES, AND SHALL BE REPRORATED WHEN THE
ACTUAL FINAL BILL IS AVAILABLE, IN ACCORDANCE WITH SECTION 4.2.7.
SUCH
REPRORATION OBLIGATION SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE INTO ANY
DOCUMENTATION DELIVERED AT CLOSING.
NOTWITHSTANDING THE FOREGOING, BUT SUBJECT
TO THE PROVISIONS OF SECTION 4.2.7, THERE WILL BE NO PRORATION FOR TAXES TO THE
EXTENT A PROJECT IS LEASED TO A SINGLE TENANT AND SUCH TENANT'S RESPECTIVE LEASE
REQUIRES THAT TENANT TO PAY TAXES, WHETHER DIRECTLY OR BY REIMBURSEMENT TO
SELLER, RATHER THAN PAYING ESTIMATED AMOUNTS THEREFOR TO SELLER AS ADDITIONAL
RENT.
BUYER SHALL PAY ALL TAXES DUE AND PAYABLE AFTER CLOSING, AND
RECONCILIATIONS WITH TENANTS FOR TAXES DUE AND PAYABLE DURING CALENDAR YEAR 2005
SHALL BE RESPONSIBILITY OF BUYER POST-CLOSING, PURSUANT TO, AND IN ACCORDANCE
WITH, SECTION 4.2.7 BELOW.
IN NO EVENT SHALL SELLER BE CHARGED WITH OR
RESPONSIBLE FOR ANY INCREASE IN THE TAXES RESULTING FROM AN INCREASE IN THE
ASSESSED VALUATION OF ANY PROJECT, WHICH INCREASE OCCURS AS A RESULT OF THE SALE
OF THE PROPERTY OR FROM ANY IMPROVEMENTS FIRST MADE OR LEASES FIRST ENTERED INTO
ON OR AFTER THE CLOSING DATE; PROVIDED, HOWEVER, THAT SELLER NEVERTHELESS
ACKNOWLEDGES THAT TAXES MAY INCREASE DUE TO CHANGES IN ASSESSED VALUATION AND/OR
IN TAX RATES, WITHOUT THE CHANGE IN ASSESSED VALUATION BEING ATTRIBUTABLE TO THE
SALE OF A PROJECT OR ANY POST-CLOSING LEASING OR IMPROVEMENTS THEREON.
(I)
DELINQUENT TAXES.
SELLER SHALL PAY TO THE APPLICABLE TAX
AUTHORITIES AT OR PRIOR TO THE CLOSING ALL TAXES AND ASSESSMENTS WITH RESPECT TO
THE PROPERTY WHICH ARE DELINQUENT AS OF THE CLOSING.
(II)
PREPAID TAXES.
IF ANY PORTION OF ANY OTHER ASSESSMENTS (E.G.
SPECIAL ASSESSMENTS AND SPECIFICALLY EXCLUDING TAXES) PAID BY SELLER WITH
RESPECT TO THE PROPERTY AT OR PRIOR TO THE CLOSING, DETERMINED ON A CASH (RATHER
THAN ACCRUAL) BASIS, RELATE
7
TO ANY TIME INCLUDING OR AFTER THE CLOSING DATE, BUYER SHALL PAY TO SELLER AT
THE CLOSING THE PROPORTIONATE AMOUNT OF SUCH OTHER ASSESSMENTS PAID BY SELLER,
BASED UPON (X) THE PERIOD OF TIME TO WHICH SUCH OTHER ASSESSMENT APPLIES AND (Y)
THE CLOSING DATE.
(III)
TAX REFUNDS.
ALL REFUNDS OF TAXES RECEIVED BY SELLER OR BUYER
AFTER THE CLOSING WITH RESPECT TO THE PROPERTY ("TAX REFUND") SHALL BE APPLIED
(A) FIRST, TO SELLER OR BUYER, AS THE CASE MAY BE, TO THE EXTENT OF THIRD PARTY
EXPENSES INCURRED BY EITHER PARTY IN PROTESTING AND OBTAINING SUCH TAX REFUND,
(B) SECOND, TO BUYER TO THE EXTENT THAT SUCH TAX REFUND IS REQUIRED TO BE PAID
TO (OR CREDITED AGAINST OTHER AMOUNTS PAYABLE BY) THE TENANTS UNDER THE LEASES,
AND (C) THIRD, (X) TO SELLER IF SUCH TAX REFUND IS FOR ANY PERIOD WHICH ENDS
BEFORE THE CLOSING DATE, (Y) TO BUYER IF SUCH TAX REFUND IS FOR ANY TAX PERIOD
WHICH COMMENCES AFTER THE CLOSING, AND (Z) WITH RESPECT TO ANY