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XIII of this Agreement, and Seller fails to pay such amount, Parent and
Purchaser shall have the right to offset such amount against the Deferred
Payments and the amounts payable under the Transition Agreement, in each case,
respectively, in accordance with the terms and provisions set forth herein and
therein.
3.5 Proration of Taxes. All real and personal property taxes and
special assessments payable but not yet due with respect to any of the Assets
shall be prorated between Seller and Purchaser as set forth on Schedule 3.5 on
the basis of actual days elapsed between the commencement of the current fiscal
tax year and the Closing Date, based on a 365-day year; provided that all such
taxes and assessments which Seller has agreed to pay on an installment basis
shall be paid in full at or prior to the Closing Date. In connection with such
proration of taxes, in the event that actual tax figures for the year of Closing
are not available at the Closing Date, an estimated, provisional proration of
taxes shall be made using tax figures from the preceding year together with such
increases or decreases thereof as Purchaser and Seller may agree. It is the
intent of the parties that the Seller shall be responsible for all tax
liabilities related to the Assets up to and including the Closing Date, and
Purchaser shall be responsible for all tax liabilities related to the Assets
following the Closing. In the event that one of the parties later receives a
bill showing such charges to be more or less than originally estimated, such
party shall send notice to the other party within thirty (30) days of such
receipt (the "Recalculation Notice") with a statement indicating the amount
overpaid or underpaid by such other party. The party that underpaid shall pay
the other party within thirty (30) days of receipt of the Recalculation Notice
unless such amount is disputed utilizing the procedures set forth in Section
13.9. All transfer taxes, if any, arising from the sale of the Assets shall be
borne by Seller.
3.6 Proration of Utility Charges and Other Payments. In any case in
which the Closing Date shall fall on a date other than the date on which
payments are due, and for which a final billing has not been obtained by Seller,
with respect to any utility or similar regular periodic charge respecting the
Assets or the Leased Real Property including, but not limited to, common area
maintenance charges, any such utility or similar charge payable with respect to
the current period in which the Closing Date occurs shall be prorated between
Seller and Purchaser on the basis of the actual number of days elapsed from the
first day of such period to the Closing Date as set forth on Schedule 3.6. In
the event that one of the parties later receives a bill showing such charges to
be more or less than originally estimated, such party shall send a Recalculation
Notice to the other party within thirty (30) days of such receipt with a
statement indicating the amount overpaid or underpaid by such other party. The
party that underpaid shall pay the other party within thirty (30) days of
receipt of the Recalculation Notice unless such amount is disputed utilizing the
procedures set forth in Section 13.9. Appropriate adjustment shall also be made
at Closing to apportion the Assumed Liabilities so that Seller shall be
responsible for, and enjoy the benefits of, the Assumed Liabilities for the
period prior to and including the Closing Date, and Purchaser shall be
responsible for, and enjoy the benefits of, the Assumed Liabilities for the
period following the Closing Date.
3.7 Additional Rights for Assets. Effective on the Closing Date, Seller
hereby constitutes and appoints Purchaser the true and lawful attorney of
Seller, with full power of substitution, in the name of Seller or Purchaser, but
on behalf of and for the benefit of Purchaser: (i) to demand and receive from
time to time any and all the Assets and to make endorsements and