MATTERS"), THEN, (X) IN ORDER
TO ADDRESS SUCH UNRESOLVED MATERIAL MATTERS, THE PURCHASER OR THE SELLERS MAY
ELECT TO TREAT ANY PROPERTY TO WHICH SUCH UNRESOLVED MATERIAL MATTERS PERTAIN AS
A REJECTED PROPERTY, SUBJECT TO AND IN ACCORDANCE WITH THE TERMS OF SECTION 10.3
HEREOF (INCLUDING, WITHOUT LIMITATION, THE LIMITATION ON THE NUMBER OF
PROPERTIES THAT MAY BE TREATED AS REJECTED PROPERTIES UNDER THIS AGREEMENT) AND,
IF ANY PROPERTIES ARE SO REJECTED, THE UNRESOLVED MATERIAL MATTERS RELATING
THERETO SHALL BE DEEMED TO BE WAIVED AND (Y) IF NEITHER THE PURCHASER NOR THE
SELLERS ELECT TO TREAT THE APPLICABLE PROPERTIES AS REJECTED PROPERTIES TO
ADDRESS SUCH UNRESOLVED MATERIAL MATTERS OR IF, AFTER TAKING INTO ACCOUNT ALL
PROPERTIES THAT EITHER THE PURCHASER OR THE SELLERS HAVE ELECTED TO TREAT AS
REJECTED PROPERTIES, THE UNRESOLVED MATERIAL MATTERS CONTINUE TO EXIST, THEN THE
SELLERS OR THE PURCHASER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO THE
OTHER PARTY AND THE ESCROW AGENT, WHEREUPON THE DEPOSIT SHALL PROMPTLY BE
RETURNED BY THE ESCROW AGENT TO THE PURCHASER AND THE PARTIES HERETO SHALL HAVE
NO FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EXCEPT FOR THOSE THAT SPECIFICALLY
SURVIVE THE TERMINATION OF THIS AGREEMENT.
IN THE EVENT ANY MATERIAL MATTERS,
IN THE AGGREGATE, EXCEED THE MATERIAL MATTERS THRESHOLD, THE PARTIES AGREE TO
COUNT TOWARDS THE MATERIAL MATTERS THRESHOLD THE MAXIMUM NUMBER OF PROPERTIES
POSSIBLE, SO THAT THE MINIMUM POSSIBLE NUMBER OF PROPERTIES COULD POSSIBLY BE
TREATED AS REJECTED PROPERTIES UNDER THIS AGREEMENT.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
PARTIES HERETO ACKNOWLEDGE AND AGREE THAT, UNLESS THE PURCHASER SO ELECTS, IN
ITS SOLE DISCRETION, IT IS NOT INTENDED THAT THE CONCEPT OF A "MATERIAL MATTER"
BE APPLIED TO ANY BREACH BY THE SELLERS OF ANY OF THEIR OBLIGATIONS SET FORTH IN
THIS AGREEMENT, AND UPON ANY SUCH BREACH, THE PURCHASER SHALL HAVE THE RIGHTS
SET FORTH IN SECTION 10.3 AND SECTION 11.3.
(D)
FOR THE PURPOSES OF DETERMINING WHETHER A MATERIAL MATTER EXISTS
WITH RESPECT TO THE MINIMUM RENT, ADDITIONAL RENT OR PERCENTAGE RENT PAYABLE
UNDER OR THE TERM OF ANY LEASE, THE VALUE OF ANY VARIATION IN THE MINIMUM RENT,
ADDITIONAL RENT OR PERCENTAGE RENT OR THE TERM OF ANY LEASE FROM THAT SET FORTH
IN THE RENT ROLL SHALL BE DEEMED TO BE THE DIFFERENCE BETWEEN (I) THE VALUE OF
THE RESPECTIVE PROPERTY TO WHICH SUCH LEASE RELATES CALCULATED ACCORDING TO THE
ARGUS MODEL USING THE INFORMATION SET FORTH IN THE RENT ROLL AND (II) THE VALUE
OF SUCH PROPERTY AS RE-CALCULATED BY USING THE ARGUS MODEL AND SUBSTITUTING SUCH
REVISED MINIMUM RENT, ADDITIONAL RENT OR PERCENTAGE RENT OR TERM OF SUCH LEASE,
AS APPLICABLE, IN THE ARGUS MODEL FOR THE AMOUNTS OR PERIOD PREVIOUSLY USED.
THE VALUES OF ANY SUCH VARIATIONS SHALL BE NETTED AGAINST EACH OTHER IN
DETERMINING WHETHER A MATERIAL MATTER EXISTS.
NOTWITHSTANDING THE FOREGOING,
THE ONLY CAUSE FOR A MATERIAL MATTER TO EXIST WITH RESPECT TO ANY ADDITIONAL
RENT IS IF THE METHODOLOGY OF CALCULATING THE ADDITIONAL RENT AS ACTUALLY SET