ITEM OF ADDITIONAL
RENT, EACH PARTY WILL 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.
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 THE TRUST'S ORGANIZATION AND
OPERATION IN CONFORMITY WITH THE REQUIREMENTS FOR QUALIFICATION AND TAXATION AS
A REAL ESTATE INVESTMENT TRUST PURSUANT TO SECTION 856-857 OF THE CODE ("REIT")
AT ALL TIMES BEGINNING ON THE DATE OF THE TRUST'S FORMATION THROUGH DECEMBER 31,
2005 AND FOR THE PERIOD FROM JANUARY 1, 2006 UNTIL THE CLOSING. SUCH OPINION
SHALL BE SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 4.6.1, WHICH SUCH
OPINION SHALL BE BASED ON CUSTOMARY ASSUMPTIONS AND REPRESENTATIONS (INCLUDING
AN ASSUMPTION THAT FOR PURPOSES OF THE OPINION THE TRUST'S TAXABLE YEAR ENDED AT
THE CLOSING, AND AN ASSUMPTION THAT THE TRUST SATISFIED THE DISTRIBUTION
REQUIREMENT DESCRIBED IN CODE SECTION 857(A)(1) FOR THE HYPOTHETICAL SHORT
TAXABLE YEAR BEGINNING JANUARY 1, 2006 AND ENDING AT THE CLOSING), AND SHALL BE
SUBJECT TO SUCH CHANGES OR MODIFICATIONS FROM THE LANGUAGE IN SUCH FORM OPINION
AS DEEMED NECESSARY OR APPROPRIATE BY GOODWIN PROCTER LLP AND REASONABLY
SATISFACTORY TO PURCHASER;
4.6.2
SELLER SHALL HAVE DELIVERED TO PURCHASER ALL OF THE ITEMS REQUIRED TO
BE DELIVERED TO PURCHASER PURSUANT TO THE TERMS OF THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO, THOSE PROVIDED FOR IN SECTION 4.2 HEREOF;
4.6.3
SUBJECT TO SECTION 4.2.5, ALL OF THE REPRESENTATIONS AND WARRANTIES OF
SELLER CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE DATE OF CLOSING, PROVIDED THAT IN THE EVENT SELLER IS UNABLE
TO STATE THAT THE REPRESENTATIONS AND WARRANTIES OF SELLER ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THE DATE OF CLOSING, SELLER SHALL HAVE THE RIGHT
TO CURE THE CONDITION PREVENTING SELLER FROM MAKING SUCH STATEMENT, AND THE
CLOSING DATE SHALL BE EXTENDED FOR A PERIOD OF UP TO FIFTEEN (15) DAYS TO ALLOW
SELLER TO CURE SUCH CONDITION;
18
4.6.4
SELLER SHALL HAVE