Common use of Tax Appeals Clause in Contracts

Tax Appeals. Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “Pre-Closing Tax Appeals”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal pursuant to the terms of the applicable Lease. If Seller elects not to pursue any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue such Pre-Closing Tax Appeal, unless Purchaser is required to pursue such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects not to pursue and which Purchaser elects or is obligated to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closing.”

Tax Appeals. Subject to If any tax reduction proceedings in respect of the rights of tenants under Leases, following the ClosingProperty, (i) Purchaser relating to any fiscal years ending prior to the fiscal year in which the Closing occurs or (ii) relating to the fiscal year in which the Closing occurs, are pending at the time of Closing, then until the date which is two (2) years after the Closing Date (the “Tax Proceedings Cutoff Date”) the Seller reserves and shall have the right to pursue all continue to prosecute and/or settle the same, subject to Buyer’s reasonable approval and ability to participate; provided, however, that Seller shall not settle any such proceeding that relates to the taxable year during which the Closing occurs or which could reasonably be expected to 19 increase any tax appeals liability with respect to the Property in progress as of a taxable period (or portion thereof) following the Closing Date without Buyer’s prior written consent, which relate to the year of Closing and all subsequent years and (ii) Seller consent shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “Pre-Closing Tax Appeals”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed. Buyer shall reasonably cooperate with Seller in connection with the prosecution of any such tax reduction proceedings. From and after the Tax Proceedings Cutoff Date, unless Seller is required Buyer shall have the sole right to continue and prosecute and/or settle any tax reduction proceedings in respect of the Property. Any refunds or savings (including credits) in the payment of real property taxes (whether or not resulting from such Pre-Closing Tax Appeal pursuant tax reduction proceedings) applicable to taxes payable during the period (or portion thereof) prior to the terms of the applicable Lease. If Seller elects not to pursue any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue such Pre-Closing Tax Appeal, unless Purchaser is required to pursue such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects not to pursue and which Purchaser elects or is obligated to pursue, and (ii) any tax appeal in progress as date of the Closing Date with respect shall belong to and be the property of Seller, and any refunds or savings in the payment of taxes applicable to taxes payable from and after the date of the Closing shall belong to and be the property of Buyer; provided, however, that if any refund received by the Seller pursuant to this Section 8.20 creates an obligation to reimburse any Tenants under Leases for any rents or additional rents paid or to be paid, that portion of such refund equal to the year amount of Closingsuch required reimbursement (after deduction of allocable expenses as may be provided in the Lease to such Tenant) shall be paid by Seller directly to the Tenants entitled thereto. All attorneys’ fees and other expenses incurred in obtaining such refunds or savings shall be apportioned between Seller and Buyer in proportion to the gross amount of such refunds or savings payable to Seller and Buyer, respectively (without regard to any amounts reimbursable to Tenants); provided, however, that neither Seller nor Buyer shall have any liability for any such fees or expenses in excess of the refund or savings paid to such party unless such party initiated such proceeding. All amounts payable to Buyer shall be paid by Seller within ten (10) business days after receipt by Seller or its successors or assigns of such refund or savings. All amounts payable to Seller shall cooperate with Purchaser, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and providing Purchaser with copies be paid by Buyer within ten (10) business days after receipt by Buyer or its successors or assigns of such appeals and any relevant documentationrefund or savings. The provisions of this Section 8.10 shall survive the Closing[Signature page follows.”] 20

Tax Appeals. Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue continue and to control the progress of and to make all tax appeals in progress as decisions with respect to any contest of the Closing Date which relate to all years prior real estate taxes and personal property taxes for the Property attributable to the year of Closing (the “Pre-Closing Tax Appeals”) Year and all prior Tax Years; provided, however, Buyer shall have the right to review and consent to any proceeds contest of the Pre-real estate taxes and personal property taxes for the Property attributable to the Closing Tax Appeals shall be Year which Seller elects to pursue after the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Effective Date and further provided that Seller shall promptly upon receipt of make no settlement with regard to any such proceeds remit to Purchaser contest without Buyer’s prior written consent, which such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event consent shall Seller settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required where such settlement involves or may adversely impact real estate taxes and personal property taxes attributable to settle such Pre-the Closing Tax Appeal Year or any subsequent Tax Years. Buyer shall have the right to control the progress of and to make all decisions with respect to any tax contest of the real estate taxes and personal property taxes for the Property attributable to all Tax Years subsequent to the Closing Tax Year. All real estate and personal property tax refunds and credits received after Closing with respect to the Property shall be applied in the following order of priority: first, to pay the costs and expenses (including reasonable attorneys’ fees, expenses and disbursements and fees contingent on the amount of recovery) incurred in connection with obtaining such tax refund or credit; second, to pay any amounts due to any past or present Tenant of the Property as a result of such tax refund or credit to the extent required pursuant to the terms of the applicable Lease. If Leases; and third, apportioned between Buyer and Seller elects not as follows: (a) any refunds or credits attributable to pursue any Pre-the Closing Tax AppealYear shall be apportioned between Buyer and Seller in the manner provided in Section 7.1; (b) any refunds or credits attributable to any period prior to the Closing Tax Year, Seller shall so notify Purchaser within a reasonable be paid to Seller; and (c) any refunds or credits attributable to any period after the Closing, and Purchaser, at its option, may elect to pursue such Pre-Closing Tax Appeal, unless Purchaser is required Year shall be paid to pursue such Pre-Closing Tax Appeal pursuant Buyer. Buyer and Seller agree to the terms cooperate with each other and to execute any and all documents reasonably requested in furtherance of the applicable Leases, in which case Purchaser shall pursue such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects not to pursue and which Purchaser elects or is obligated to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and providing Purchaser with copies of such appeals and any relevant documentationforegoing. The provisions of this Section 8.10 shall survive the Closing.”

Tax Appeals. Subject Seller may file and/or prosecute an application for the reduction of the assessed valuation of the Property or any portion thereof for Property Taxes or a refund of Property Taxes previously paid to the rights of tenants under Leases, following the Closing, any governmental authority (i) Purchaser shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to all years for any Tax Year prior to the year of Closing (the “Pre-Closing Tax Appeals”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, Year in which case, Seller the Closing shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller settle any Pre-Closing Tax Appeal occur without the prior consent of Purchaser, and (ii) for the Tax Year in which the Closing shall occur, provided Purchaser shall have consented with respect thereto, which consent shall not to be unreasonably withheld, conditioned withheld or delayed, unless . The amount of any tax refunds (net of attorneys’ fees and other costs of obtaining such tax refunds) with respect to any portion of the Property for the Tax Year in which the Closing occurs shall be apportioned between Seller is required and Purchaser as of the Closing with a prior allocation of the portion thereof that must be returned to settle such Pre-Closing Tax Appeal Tenants pursuant to the terms of the applicable Lease. If Seller elects not to pursue any Pre-Closing Tax AppealLeases, Seller shall so notify hereby agreeing to be responsible for the return of such refund to such Tenants for the period up to and including the Closing Date and Purchaser within a reasonable having such obligation for the return of such refunds attributable to the period after the Closing. If, and Purchaserin lieu of a tax refund, at its optiona tax credit is received with respect to any portion of the Property for the Tax Year in which the Closing occurs, may elect then with a prior allocation of the portion thereof which must be returned to pursue such Pre-Closing Tax Appeal, unless Purchaser is required to pursue such Pre-Closing Tax Appeal Tenants pursuant to the terms of their Leases in the applicable Leasessame manner as set forth above, in which (x) the tax credit apportionment shall be readjusted between Seller and Purchaser within thirty (30) days after receipt by Seller or Purchaser, as the case Purchaser shall pursue may be, of evidence of the actual amount of such Pre-Closing Tax Appeal. With respect to tax credit (i) any Pre-Closing Tax Appeal which Seller elects not to pursue net of attorneys’ fees and which Purchaser elects or is obligated to pursueother costs of obtaining such tax credit), and (iiy) upon realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any tax appeal Tax Year prior to the Tax Year in progress as of which the Closing Date with respect shall occur shall (subject to the year rights of Closingtenant and licensees) belong solely to Seller (and Purchaser shall have no interest therein) and, Seller if the same shall cooperate with be paid to Purchaser or anyone acting on behalf of Purchaser, including, without limitation, substituting counsel, making Seller’s experts available the same shall be paid to Purchaser and providing Purchaser with copies of such appeals and any relevant documentationSeller following receipt thereof. The provisions of this Section 8.10 5.4.10 shall survive the ClosingClosing indefinitely.”

Tax Appeals. Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing has engaged Xxx Xxxxxxx/Mountain High Properties (the “Pre-Closing Tax AppealsBroker”) and any proceeds for the purpose of protesting the Pre-Closing Tax Appeals shall be amount of taxes or the property of Seller unless such proceeds are required assessed valuation for calendar year 2007 for the Property (“Protest Proceedings”), with the fee (the “Broker’s Fee”) to be paid to the tenant under Broker in connection therewith being equal to thirty percent (30%) of any net savings resulting from the Protest Proceedings. Any reduction in the taxes originally assessed for calendar year 2007 prior to payment of such taxes or any cash refunds or proceeds actually distributed following payment of such taxes (collectively, “Tax Reduction”) will be apportioned as described below. Any Tax Reduction (including interest thereon) on account of a favorable determination, after deduction of payment of any reimbursements owing to the Tenants, shall be: (a) the property of Seller to the extent such Tax Reduction was for taxes paid by Seller applicable Lease, to a period prior to the calendar year in which casethe Closing Date occurred, (b) prorated between Buyer and Seller for taxes paid or payable for the calendar year in which the Closing Date occurred, and (c) the property of Buyer for taxes payable for a period after the calendar year in which the Closing Date occurred. Buyer shall pay the Broker’s Fee directly to the Broker when due (that is, on determination or receipt of the Tax Reduction), and the Tax Reduction to be distributed or apportioned shall not be reduced by the Broker’s Fee, which shall be borne solely by Buyer. Seller shall promptly upon have the obligation to refund to the Tenants as of the date of such Tax Reduction, any portion of such Tax Reduction paid to it which may be owing to the Tenants, which payment shall be paid to Buyer within fifteen (15) business days of delivery to Seller by Buyer of written confirmation of the Tenants’ entitlement to such Tax Reduction. Buyer shall have the obligation to refund to the Tenants as of the date of such Tax Reduction, any portion of such Tax Reduction paid to it which may be owing to the Tenants. Seller and Buyer agree to notify the other in writing of any receipt of a Tax Reduction within fifteen (15) business days of receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costsTax Reduction. To the extent either party obtains a Tax Reduction, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts a portion of which is owed to the tenant under other party, the applicable Lease. Notwithstanding receiving party shall deliver the foregoing, in no event shall Seller settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal pursuant Reduction to the terms other party within fifteen (15) business days of the applicable Lease. If Seller elects not to pursue any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue such Pre-Closing Tax Appeal, unless Purchaser is required to pursue such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects not to pursue and which Purchaser elects or is obligated to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with Purchaser, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closingreceipt.”

Tax Appeals. Subject to the rights of tenants under Leases, following the Closing, (i) Purchaser shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to the year of Closing and all subsequent years and (ii) Seller shall have the right to pursue on behalf of the Subsidiary all tax appeals in progress as of the Closing Date which relate to all years prior to the year of Closing (the “Pre-Closing Tax Appeals”) and any proceeds of the Pre-Closing Tax Appeals shall be the property of Seller unless such proceeds are required to be paid to the tenant under the applicable Lease, in which case, Seller shall promptly upon receipt of such proceeds remit to Purchaser such proceeds less Seller’s out-of-pocket costs, including, without limitation, reasonable attorney’s fees, incurred in connection with such Pre-Closing Tax Appeal, but in no event less than the amounts owed to the tenant under the applicable Lease. Notwithstanding the foregoing, in no event shall Seller on behalf of the Subsidiary settle any Pre-Closing Tax Appeal without the prior consent of Purchaser, not to be unreasonably withheld, conditioned or delayed, unless Seller is required to settle such Pre-Closing Tax Appeal on behalf of the Subsidiary pursuant to the terms of the applicable Lease. If Seller elects not to pursue on behalf of the Subsidiary any Pre-Closing Tax Appeal, Seller shall so notify Purchaser within a reasonable period after the Closing, and Purchaser, at its option, may elect to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal, unless Purchaser is required to pursue on behalf of the Subsidiary such Pre-Closing Tax Appeal pursuant to the terms of the applicable Leases, in which case Purchaser shall pursue on behalf the Subsidiary such Pre-Closing Tax Appeal. With respect to (i) any Pre-Closing Tax Appeal which Seller elects on behalf of the Subsidiary not to pursue and which Purchaser elects or is obligated on behalf of the Subsidiary to pursue, and (ii) any tax appeal in progress as of the Closing Date with respect to the year of Closing, Seller shall cooperate with PurchaserPurchaser and the Subsidiary, including, without limitation, substituting counsel, making Seller’s experts available to Purchaser and the Subsidiary and providing Purchaser with copies of such appeals and any relevant documentation. The provisions of this Section 8.10 shall survive the Closing.”