TO SECTION 856-857 OF THE CODE
("REIT") AT ALL TIMES BEGINNING ON THE DATE OF EACH TRUST'S FORMATION THROUGH
DECEMBER 31, 2006 AND FOR THE PERIOD FROM JANUARY 1, 2007 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 EACH
TRUST'S TAXABLE YEAR ENDED WITH THE CLOSING, AND AN ASSUMPTION THAT EACH TRUST
SATISFIED THE DISTRIBUTION REQUIREMENT DESCRIBED IN CODE SECTION 857(A)(1) FOR
THE HYPOTHETICAL SHORT TAXABLE YEAR BEGINNING JANUARY 1, 2007 AND ENDING WITH
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, WITH SUCH MATERIALITY TO BE
JUDGED ACROSS THE PROPERTY AS A WHOLE, 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;
4.6.4
SELLER SHALL HAVE PERFORMED AND OBSERVED, IN ALL MATERIAL RESPECTS,
WITH SUCH MATERIALITY TO BE JUDGED ACROSS THE PROPERTY AS A WHOLE, ALL COVENANTS
AND AGREEMENTS OF THIS AGREEMENT TO BE PERFORMED AND OBSERVED BY SELLER AS OF
THE DATE OF CLOSING; AND
17
4.6.5
PURCHASER'S RECEIPT AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE
CLOSING (THE "ESTOPPEL RETURN DATE") OF ESTOPPEL CERTIFICATES SUBSTANTIALLY IN
THE FORM OF EXHIBIT 4.6.5, WITH SUCH ADDITIONAL INFORMATION OR MODIFICATIONS
REASONABLY APPROVED BY PURCHASER, OR IN SUCH FORM AS REQUIRED TO CONFORM TO ANY
SPECIFIC REQUIREMENTS IN THE APPLICABLE LEASE (I) FROM (A) EACH TENANT LEASING
40,000 OR MORE RENTABLE SQUARE FEET OF FLOOR AREA IN THE IMPROVEMENTS (A "MAJOR
TENANT") AND (B) TENANTS UNDER LEASES REPRESENTING SEVENTY-FIVE PERCENT (75%) OF
THE RENTABLE SQUARE FEET OF FLOOR AREA OF EACH INDIVIDUAL PROPERTY), INCLUDING
MAJOR TENANTS BUT EXCLUDING RENTABLE SQUARE FEET OF FLOOR AREA NOT CURRENTLY
SUBJECT TO ANY LEASE, (II) WHICH CONFIRM THE DOCUMENTS CONSTITUTING THE LEASE OF
EACH SUCH TENANT, AND (III) WHICH DO NOT (X) ALLEGE THE EXISTENCE OF ANY DEFAULT
BY SELLER OR ANY UNPERFORMED OBLIGATION BY SELLER, (Y) RECITE ANY MATERIAL FACT
WHICH CONTRADICTS THE LEASE SCHEDULE, OR (Z) DISCLOSE THE EXISTENCE OF ANY
DELINQUENT FIXED RENT, ADDITIONAL RENT OR OTHER MATERIAL CHARGES PAYABLE