DISTRIBUTIONS THAT
QUALIFY FOR THE DIVIDENDS PAID DEDUCTIONS SET FORTH IN SECTION 857(B)(2)(B) OF
THE CODE AND SECTION 561 OF THE CODE) SUCH THAT EACH TRUST SATISFIES THE 90%
DISTRIBUTION REQUIREMENT OF CODE SECTION 857(A)(1) AND EACH TRUST'S REAL ESTATE
INVESTMENT TRUST TAXABLE INCOME (AS DEFINED IN SECTION 857(B)(2) OF THE CODE)
WILL BE REDUCED TO ZERO FOR THE TAXABLE YEAR OF SUCH TRUST THAT INCLUDES THE
CLOSING.
(III)
PURCHASER COVENANTS AND AGREES THAT PRIOR TO JANUARY 1, 2008, NO
TRUST SHALL ACQUIRE, ACCEPT TRANSFER OF, OR HOLD, OR ALLOW ANY SUBSIDIARY TO
ACQUIRE, ACCEPT TRANSFER OF, OR HOLD, ANY ASSETS OTHER THAN THE PROPERTY THAT
EACH TRUST HOLDS IMMEDIATELY PRIOR TO THE CLOSING.
(IV)
PURCHASER COVENANTS THAT NO TRUST WILL TAKE ANY ACTION THAT IS
INCONSISTENT WITH THE TRUST'S STATUS AS A REIT FOR PERIODS ENDING ON OR BEFORE
DECEMBER 31, 2006.
6.4.3
SUBSEQUENT FILINGS. PROMPTLY AFTER CLOSING, PURCHASER SHALL CAUSE TO
BE FILED IN THE STATES OF DELAWARE, MARYLAND AND ILLINOIS NAME CHANGE
CERTIFICATES TO
47
DELETE FROM THE LEGAL NAME OF EACH TRUST ANY REFERENCE TO "BEACON CAPITAL" OR
"BCSP" AND PURCHASER SHALL PROVIDE EVIDENCE TO SELLER OF SUCH FILINGS PROMPTLY
THEREAFTER.
6.4.4
TAX MATTERS. TO COOPERATE WITH SELLER TO THE EXTENT PROVIDED FOR IN
SECTION 5.7, INCLUDING, WITHOUT LIMITATION, CAUSING THE TAX RETURNS TO BE SIGNED
BY PURCHASER, AS APPLICABLE.
6.4.5
INFORMATION REGARDING PURCHASER'S POTENTIAL COMPLIANCE WITH REIT
STATUS. FOLLOWING THE CLOSING, PURCHASER SHALL PROMPTLY PROVIDE SUCH INFORMATION
AS IS REASONABLY REQUESTED BY SELLER OR SELLER'S THIRD-PARTY CONSULTANTS WITH
RESPECT TO PURCHASER'S ABILITY TO CAUSE EACH TRUST TO MAINTAIN ITS STATUS AS A
REIT FOR SUCH TRUST'S TAXABLE YEAR THAT INCLUDES THE CLOSING, INCLUDING, WITHOUT
LIMITATION, AN OPINION OF PURCHASER'S COUNSEL, SUBSTANTIALLY IN THE FORM
ATTACHED HERETO AS EXHIBIT 4.6.1 (MODIFIED AS REASONABLY NEEDED TO REFLECT THE
FACT THAT PURCHASER'S COUNSEL WILL ADDRESS POST-CLOSING REIT COMPLIANCE AND
MODIFIED TO PROVIDE THAT, WITH RESPECT TO PERIODS PRIOR TO THE CLOSING DATE,
PURCHASER'S COUNSEL MAY RELY ON THE OPINION OF GOODWIN PROCTER LLP DATED AS OF
THE CLOSING DATE AND DESCRIBED IN SECTION 4.6.1), REGARDING EACH TRUST'S
CONFORMITY, SINCE THE CLOSING DATE, WITH THE REQUIREMENTS FOR QUALIFICATION AND
TREATMENT AS A REIT DURING ITS TAXABLE YEAR THAT INCLUDES THE CLOSING.
The provisions of this Section 6.4 shall survive Closing.
7.
DEFAULT
7.1
Default by Purchaser. In the event that Purchaser defaults in its
obligations to consummate the transactions contemplated by this Agreement for
any reason other than:
(x) Seller's default hereunder, (y) a failure of a
condition precedent to Purchaser's obligations hereunder or (z) the permitted
termination of this Agreement by Seller or Purchaser as herein expressly
provided, prior to Closing, Seller shall have the right to terminate this
Agreement and receive, liquidate (by Escrow Agent drawing upon the Acceptable
Letters of Credit) and retain the Deposit as liquidated damages and as Seller's
sole and exclusive remedy for a breach of Purchaser's obligations under this
Agreement prior to Closing. Thereafter, except for Purchaser's obligations which
by their