NATURE ("ADDITIONAL RENTS") CHARGED TO TENANTS UNDER
THE LEASES. SELLER AGREES TO DIRECTLY REIMBURSE THE APPLICABLE TENANT
(AS
OPPOSED TO CREDIT FUTURE RENT) FOR THE AMOUNTS OF ADDITIONAL RENT CALCULATED BY
SELLER AS BEING DUE TO SUCH TENANT FOR THE CALENDAR YEAR 2006. WITH RESPECT TO
ANY ADDITIONAL RENT (INCLUDING ADDITIONAL RENT COLLECTED BY LANDLORD (REFERENCES
TO A LANDLORD OF A PROPERTY SHALL INCLUDE A REFERENCE TO 10/120 GROUND LESSEE IN
ITS CAPACITY AS A SUBLANDLORD) FOR THE PERIOD FROM JANUARY 1, 2007 THROUGH
CLOSING) WHICH IS NOT FINALLY ADJUSTED BETWEEN THE LANDLORD AND ANY TENANT UNDER
ANY LEASE UNTIL AFTER THE CLOSING DATE, THEN PURCHASER SHALL SUBMIT TO SELLER,
WITHIN THIRTY (30) DAYS AFTER THE ADDITIONAL RENTS HAVE BEEN FINALLY ADJUSTED
BETWEEN LANDLORD AND THE TENANTS, A SUPPLEMENTAL STATEMENT COVERING ANY SUCH
ADDITIONAL RENTS OR ANY OTHER ITEMS WHICH HAVE BEEN FINALLY ADJUSTED BETWEEN THE
LANDLORD AND SUCH TENANTS, CONTAINING A CALCULATION OF THE ADJUSTMENTS OF SUCH
ADDITIONAL RENTS. IN THE EVENT SELLER OR THE LANDLORD IS OBLIGATED TO REIMBURSE
A TENANT FOR ADDITIONAL RENT FOR CALENDAR YEAR 2006 IN AN AMOUNT IN EXCESS OF
THE AMOUNT PAID BY SELLER AS DESCRIBED ABOVE OR WITH RESPECT TO ADDITIONAL RENT
PAID DURING THE PERIOD FROM JANUARY 1, 2007 THROUGH CLOSING, THEN SELLER SHALL
REIMBURSE PURCHASER FOR SUCH AMOUNT WITHIN THIRTY (30) DAYS AFTER RECEIPT OF THE
SUPPLEMENTAL STATEMENT. IF PURCHASER OR THE LANDLORD RECOVERS ANY ADDITIONAL
RENT FROM ANY TENANT ATTRIBUTABLE TO CALENDAR YEAR 2006 OR THE PERIOD FROM
JANUARY 1, 2007 THROUGH CLOSING, THEN PURCHASER SHALL PAY SUCH AMOUNT TO SELLER
WITHIN THIRTY (30) DAYS OF COLLECTING SUCH PAYMENTS. WITH RESPECT TO EACH ITEM
OF ADDITIONAL RENT, EACH PARTY SHALL MAKE AVAILABLE TO THE OTHER PARTY DURING
REGULAR BUSINESS HOURS THE RECORDS RELATING TO SUCH ITEMS FOR INSPECTION OR
AUDIT BY SUCH PARTY OR ITS REPRESENTATIVES.
16
4.6
Conditions Precedent to Obligation of Purchaser. The obligation of
Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions.
If the following conditions are not satisfied on or before the date of Closing,
subject to any extension right contained herein, then Purchaser may either:
(i)
elect to terminate this Agreement by written notice to Seller, in which event
the Deposit shall be returned to Purchaser and parties hereto shall have no
further obligations hereunder, except for those which by their terms survive the
termination of this Agreement, (ii) pursue its remedies provided for in Article
7 hereof or (iii) waive any of the following conditions without adjustment to
the Purchase Price:
4.6.1
PURCHASER SHALL HAVE RECEIVED THE OPINION OF GOODWIN PROCTER LLP DATED
AS OF THE CLOSING DATE, TOGETHER WITH COPIES OF ANY SUPPORTING REPRESENTATION
LETTERS DELIVERED IN CONNECTION WITH SUCH OPINION IN A FORM REASONABLY
SATISFACTORY TO PURCHASER AND SELLER, REGARDING EACH OF THE TRUSTS' ORGANIZATION
AND OPERATION IN CONFORMITY WITH THE REQUIREMENTS FOR QUALIFICATION AND TAXATION
AS A REAL ESTATE INVESTMENT TRUST PURSUANT