Common use of CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD Clause in Contracts

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-ups”, or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of or thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-upssetups”, or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. 4.2 Seller shall deliver to Buyer within 2 business days after the date hereof, the documents and materials listed on Exhibit 4.2 attached hereto and incorporated herein by reference (collectively, “Seller’s Documents”). On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations. Additionally, Seller will on receipt of reasonable prior written notice, provide Buyer with access to all of its tenant correspondence files and all other books and records of a non-proprietary and non-confidential basis relating to the Shopping Center, however stored or maintained. Notwithstanding the foregoing, Buyer shall have no right to, and hereby covenants and agrees that it will not, meet with any Space Lease tenants on the Real Estate unless a representative of Seller is present at such meeting or has been given the opportunity upon not less than 48 hours notice via e-mail or telephone to be present for any such meeting. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage or other damage, loss or liability caused by Buyer in doing any testing, inspections or survey, or in the event of a violation by Buyer of its covenants under the preceding sentence; and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer, its agents, representatives and contractors, shall enter the Real Estate at their own risk and acknowledge that Seller has not and will not take any steps to secure the Real Estate or any conditions thereon and Buyer will so advise any person entering the Real Estate on its behalf. Buyer waives and releases any claims by and behalf of itself, its agents, representatives and contractors regarding any injury sustained while on the Real Estate. Further, prior to entering the Real Estate, Buyer shall provide Seller with insurance for all activities to be conducted on the Real Estate containing such coverage and amounts as shall be reasonably acceptable to Seller. (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases and the Service Contracts. (b) In the event that during the Due Diligence Period, Buyer, in its sole judgment, is not satisfied with the condition of the Real Estate, the Property, the Space Leases or the Service Contracts or any other item of due diligence it shall consider with respect to the Real Estate or the Property, then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall promptly thereafter return the First Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer’s right to cancel this Agreement pursuant to this Section 4 shall lapse.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of or thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations (including, without limitation an environmental Phase I site analysis). Should Seller receive new or updated Property Information regarding the Property after the date first written above and prior to Closing, Seller will promptly notify Buyer of such fact and will promptly deliver complete copies thereof to Buyer. Notwithstanding the foregoing, Buyer shall have no right to, and hereby covenants and agrees that it will not, meet with any Space Lease tenants on the Real Estate unless Buyer has given not less than forty-eight (48) hours prior written notice of its intention to meet with such tenant regarding the Property or the Space Lease (which such notice may be delivered by electronic mail) and Buyer has given Seller an opportunity to be present at such meeting (however, the unavailability of a representative of Seller will not delay or prevent an inspection by Buyer). Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage or other damage, loss or liability caused by the negligence or willful misconduct of Buyer in doing any testing, inspections or survey, or in the event of a violation by Buyer of its covenants under the preceding sentence; and such obligation shall survive the Closing or sooner termination of this Agreement; provided, however, such agreement to defend, indemnify and hold Seller harmless shall not apply to the negligence or willful misconduct of Seller or its agents, employees or contractors. Buyer, its agents, representatives and contractors, shall enter the Real Estate at their own risk and acknowledge that Seller has not and will not take any steps to secure the Real Estate or any conditions thereon and Buyer will so advise any person entering the Real Estate on its behalf. Buyer waives and releases any claims by and on behalf of itself, its agents, representatives and contractors regarding any injury sustained while on the Real Estate, excepting claims for the negligence or willful misconduct of Seller and/or its agents, employees or contractors. If this Agreement is canceled for any reason, except Seller's willful default hereunder, Buyer agrees to deliver to Seller upon payment by Seller to Buyer of Buyer's cost thereof, copies of those non-confidential, non-proprietary third party prepared investigations, studies and/or tests which Buyer may have elected to obtain. (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases and the Service Contracts. In addition to the information delivered by Seller to Buyer prior to the Effective Date, Seller shall deliver to Buyer (either by physical delivery or by posting on a website to which Buyer has access) during the term of this Agreement such other documents or materials regarding the ownership, construction, or operation of the Property which are in the possession or control of Seller or its agents as Buyer shall reasonably request provided that in no event shall Seller be obligated to deliver or make available to Buyer any of Seller's internal memoranda or attorney client privileged materials with respect to the Property. (b) Prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement for any reason, or no reason at all, without liability except as set forth in Sections 4.2 and 15.7. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the expiration of the Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall lapse. 4.4 In addition to all other conditions precedent set forth in this Agreement, Buyer's obligations to perform under this Agreement and to close escrow are expressly subject to the following: (a) the issuance of an owner's policy (the "Owner's Policy") of title insurance (or a written commitment therefor) subject only to the Permitted Exceptions in form and content as set forth in Section 6 below; (b) the deposit with Escrow Agent of an executed affidavit of Seller and such other documentation as may be reasonably required by Escrow Agent to allow for the deletion of the mechanics' lien exception from the Owner's Policy; (c) Seller shall diligently and in good faith endeavor to obtain and deposit with Buyer not later than five (5) days prior to the Closing Date of (i) original, fully executed estoppel certificates (the "Estoppel Certificates") from each of the tenants under Space Leases in a form that is either (A) required by the Space Lease in question or, (B) if no form is so required, then in a form reasonably acceptable to Buyer, and, in each case, dated not more than forty-five (45) days prior to Closing (provided, however, Estoppel Certificates dated more than forty-five (45) days prior to Closing due to Buyer exercising its extension option pursuant to Section 11.1 of this Agreement shall not be deemed "stale") and naming Buyer (or its designee) and such lender of which Buyer provides written notice to Seller pursuant to the notice provisions hereof ("Lender") as addressees and (x) verifying the basic facts of the applicable Space Lease (term, rental, expiration date, options, if any exist), (y) confirming that there are no defaults by the landlord under the applicable Space Lease, no unperformed or "punchlist" construction items and no unpaid tenant improvement allowances or leasing commissions, and (z) if tenant's obligations under the applicable Space Lease have been guaranteed by another person or entity, also cover such guaranty and also be signed by such guarantor(s) and (ii) an original, fully executed estoppel certificate executed by all other parties to any applicable reciprocal easement agreement or declaration of covenants, conditions and/or restrictions which Buyer identifies as an "REA" in Buyer's Title Notice ("REAs") and addressed or certified to Buyer (or its designee and any Lender of which Buyer provides written notice to Seller pursuant to the terms hereof) stating that such instrument is in full force and effect and is not modified (except as disclosed in such estoppel certificate) and, to the best knowledge of the party giving the estoppel, the other party or parties thereto is/are not in default under the applicable instrument and all amounts, if any, owing under the applicable agreement have been paid in full (each, an "REA Estoppel"). Estoppel Certificates that (1) are dated not more than the number of days prior to the Closing Date permitted pursuant to the immediately preceding sentence, (2) have all blanks completed or marked not applicable, as appropriate, (3) have all exhibits completed and attached, as applicable, (4) do not indicate (x) any material discrepancy from the Property Information, (y) any lease amendment or assignment that was not previously provided by Seller to Buyer as part of the Property Information received at the commencement of the Due Diligence Period and which is not reasonably acceptable to Buyer, or (z) any material and adverse claim or landlord default, and (5) if the Tenant's obligations under the applicable lease have been guaranteed by another person or entity, also cover such guaranty and are also signed by the guarantor(s) (items (1)-(5) being collectively referred to herein as, the "Estoppel Requirements") are herein referred to as the "Tenant Executed Estoppel Certificates". In the event that Seller shall not have obtained Tenant Executed Estoppel Certificates from Home Depot, Gordmans, Best Buy and Guitar Center (collectively, the "Required Tenant Executed Estoppel Certificates") at the Closing, Buyer shall have the rights set forth in the paragraph following condition (f) below. Seller agrees to forward any Tenant Executed Estoppel Certificates received by Seller from a tenant to Buyer within three (3) business days after Seller's receipt of same; (d) there has been no "Insolvency Event" with respect to any tenant under the Space Leases. As used in this subsection (j), an "Insolvency Event" shall have occurred if the tenant becomes insolvent within the meaning of the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et seq., as amended (the "Bankruptcy Code"), files or notifies Seller or any affiliate of Seller that it intends to file a petition under the Bankruptcy Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, hereinafter, an "Action"), becomes the subject of either a petition under the Bankruptcy Code or an Action, or is not generally paying its debts as the same become due;

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer Buyor shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. , Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically Specifically set forth herein. It is understood and agreed that all understandings and agreements Agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Except as otherwise expressly set forth in this Agreement, Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereofClosing Date, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center Property or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of or thing affecting or relating to the Shopping Center Property except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-ups”, or information pertaining to the Shopping Center Property furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth or referred to herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. 4.2 A. Within five (5) business days after the date of this Agreement or within such other time as hereinafter set forth, Seller shall: (i) to the extent in Seller’s possession or under Seller’s control, deliver to Buyer, or cause its agents to deliver or make available to Buyer: copies of all existing surveys, title policies, Space Leases, environmental reports, permits and approvals, engineering reports, franchise agreements, management contracts and related documentation, agency agreements and related documentation, zoning materials, tax bills and any other records affecting all or any part of the Property. (ii) to the extent in Seller’s possession or under Seller’s control, deliver to Buyer, or cause its agents to deliver or make available to Buyer: (a) Original plans and specifications for the Property; (b) Copies of all Space Leases, guarantees and related documents; (c) A complete and current rent roll listing, for all Space Leases, name of tenant and any guarantor(s), unit number or other appropriate leased premises identification, commencement date and scheduled expiration date of lease, security deposit, current rent and additional rent amounts, date of latest payment for rent and additional rent, arrearages of rent and additional rent (the “Rent Roll”); (d) A current accounts receivables report; (e) 2011 & YTD 2012 Income and expense statements (the “I&E Statements”); (f) Copies of all Service Contracts and other contracts relating to the Property; (g) Copies of last 12 months’ operating statements and the 2011 tax return for the Property (the “Operating Statements”); (h) Copies of the last twelve months of utility bills for the Property; (i) Copies of the last 12 months of property taxes, valuation and tax-related documents, insurance policies and invoices, marketing and advertising expenses with invoices; (j) A copy of the managing agent’s contract and all amendments thereto; (k) A summary of pending insurance claims and pending litigation (including, without limitation, all eviction and auction actions (the “Eviction and Auction Proceedings”)), if any; (l) Bank statements for all accounts relating to the Property for the last 12 months; (m) Copies of all guaranties or warranties with respect to the roof or other portions of the Property, if any; and (n) Copies of all certificates of occupancy and/or other permits and approvals affecting the Property.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forthforth or as set forth in any document delivered by Seller at Closing. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, wear and tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth hereinherein or as set forth in any document delivered by Seller at Closing. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone atone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey, structural, architectural, geotechnical, environmental, or minimally intrusive inspections and independent investigations, provided that Buyer repairs any damage to the Property caused by such inspections and investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Buyer or Buyer's representatives may meet with any tenant; provided, however, Buyer must contact Seller at least forty-eight (48) hours in advance by telephone or fax to inform Seller of Buyer's intended meeting and to allow Seller the opportunity to attend such meeting, if Seller desires Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage or other damage, loss or liability caused by Buyer in doing any testing, inspections or survey, or in the event of a violation by Buyer of its covenants under the preceding sentence; and such obligation shall survive the Closing or sooner termination of this Agreement. In the event Buyer terminates this Agreement as provided herein, without any representation or warranty, Buyer shall give Seller true, accurate and complete copies of all written reports resulting from Buyer's inspections and investigations.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. (B) SELLER'S REQUIRED PRE-CLOSING DELIVERIES Seller shall, as soon as practicable after the date of this Agreement but not later than five (5) business days after the date of this Agreement, deliver to Buyer the following (which are referred to herein as "Pre-Closing Deliveries"): (a) copy of the Space Leases affecting the Property and the Ground Leases; (b) a certification from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the name of each tenant at the Property and the date of the Space Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Space Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Space Leases, and the existence of any options to renew or extend the term of the Space Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof; (c) a certification by Seller that there are no employees at the Property; (d) a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property; (e) copies of the most recent tax xxxx for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property; (f) copies, if any, of any environmental reports, architectural drawings, warranties, guarantees, plans and specs or any similar document in Seller's possession relating to the Property; (g) copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Space Leases; (h) copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations; (i) the materials described on Buyer's Due Diligence Checklist, attached hereto as Exhibit 12, and made a part hereof; (j) as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the date hereof, and monthly operating statements for the Property for each month of the year of the date hereof. Such statements shall include reasonable detail of all items of income and expense, other than construction costs as well as all items of capital expenditures made during the relevant periods, other than capital expenditures made in connection with the initial construction of the Shopping Center, and (k) an engagement and representation letter signed by Seller and prepared by and for the benefit of Buyer's auditors substantially in the form attached hereto as Exhibit 18, and made a part hereof. 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage caused by Buyer in doing any testing, inspections or survey and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports prepared by third parties resulting from Buyer's inspections and investigations. (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases, the Ground Leases and the Service Contracts. (b) In the event that during the Due Diligence Period, Buyer, in its sole judgment, and absolute discretion, determines that Buyer is not satisfied with the condition of the Real Estate, the Property, the Space Leases, the Ground Leases, or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall lapse. 4.4 Intentionally Deleted. 4.5 Intentionally Deleted. 4.6 Intentionally Deleted.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. (B) SELLER'S REQUIRED PRE-CLOSING DELIVERIES Seller shall, as soon as practicable after the date of this Agreement but not later than five (5) business days after the date of this Agreement,, deliver to Buyer the following (which are referred to herein as "Pre-Closing Deliveries"): (a) copy of the Space Leases affecting the Property; (b) a certification from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the name of each tenant at the Property and the date of the Space Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Space Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Space Leases, and the existence of any options to renew or extend the term of the Space Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof; (c) a certification by Seller that there are no employees at the Property; (d) a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property; (e) copies of the most recent tax xxxx for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property; (f) copies, if any, of any environmental reports, architectural drawings, warranties, guarantees, plans and specs or any similar document in Seller's possession relating to the Property; (g) copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Space Leases; (h) copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations; (i) the materials described on Buyer's Due Diligence Checklist, attached hereto as Exhibit 12, and made a part hereof; (j) as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the date hereof, and monthly operating statements for the Property for each month of the year of the date hereof. Such statements shall include reasonable detail of all items of income and expense, other than construction costs as well as all items of capital expenditures made during the relevant periods, other than capital expenditures made in connection with the initial construction of the Shopping Center. 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage caused by Buyer in doing any testing, inspections or survey and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports prepared by third parties resulting from Buyer's inspections and investigations. (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases and the Service Contracts. (b) In the event that during the Due Diligence Period, Buyer, in its sole judgment, and absolute discretion, determines that Buyer is not satisfied with the condition of the Real Estate, the Property, the Space Leases or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8, Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall lapse.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s 's behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “"as is” " as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “' "set-ups”", or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement. (B) SELLER'S REQUIRED PRE-CLOSING DELIVERIES Seller shall, as soon as practicable after the date of this Agreement but not later than five (5) business days after the date of this Agreement,, deliver to Buyer the following (which are referred to herein as "Pre-Closing Deliveries"): (a) copy of the Space Leases affecting the Property; (b) a certification from Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the name of each tenant at the Property and the date of the Space Leases and any modifications or amendments thereto, the amount of rent payable by each tenant throughout the term of its respective Space Lease, any concessions granted to the tenants, the amount of security deposits, if any, (or a certification that Seller is not holding any security deposits), the expiration date of the Space Leases, and the existence of any options to renew or extend the term of the Space Leases or to purchase all or any part of the Property and such information with respect to any subtenant if Seller has knowledge thereof; (c) a certification by Seller that there are no employees at the Property; (d) a certification by Seller that, other than as disclosed to Buyer, there are no service agreements, maintenance contracts or other similar agreements affecting the Property; (e) copies of the most recent tax xxxx for the Property, together with copies of any notice of assessments received by Seller, or any other information relative to taxes assessed against the Property; (f) copies, if any, of any environmental reports, architectural drawings, warranties, guarantees, plans and specs or any similar document in Seller's possession relating to the Property; (g) copies of any insurance policies or certificates insuring the Property, whether purchased by Seller or by the tenants under the Space Leases; (h) copies of certificates of occupancy for each tenant at the Property and copies of any building code violations received by Seller with respect to the Property during the last two years and evidence reasonably acceptable to Buyer that such violations have been corrected, or a certification from Seller that it has not received any notice of building code violations; (i) the materials described on Buyer's Due Diligence Checklist, attached hereto as Exhibit 12, and made a part hereof; (j) as applicable (depending upon the number of years the Property has been operating), an operating statement for the Property for the two calendar years prior to the year of the date hereof, and monthly operating statements for the Property for each month of the year of the date hereof. Such statements shall include reasonable detail of all items of income and expense, other than construction costs as well as all items of capital expenditures made during the relevant periods, other than capital expenditures made in connection with the initial construction of the Shopping Center, and (k) an engagement and representation letter signed by Seller and prepared by and for the benefit of Buyer's auditors substantially in the form attached hereto as Exhibit 18, and made a part hereof. 4.2 On and after the date hereof, Buyer shall have access to the Property for the purpose of making engineering, survey or non-intrusive inspections and independent investigations; and Seller will on receipt of reasonable prior written notice, provide Buyer with access to information within its possession or control with respect to the Property, including (without limitation) full and accurate copies of Space Leases, Service Contracts, title information or instruments, and books and operating records of the Shopping Center. Buyer agrees to defend, indemnify and hold Seller harmless from any personal injury or property damage caused by Buyer in doing any testing, inspections or survey and such obligation shall survive the Closing or sooner termination of this Agreement. Buyer shall give Seller true, accurate and complete copies of all written reports prepared by third parties resulting from Buyer's inspections and investigations. (a) Buyer shall have the Due Diligence Period within which to inspect and examine the Real Estate, the Space Leases, and the Service Contracts. (b) In the event that during the Due Diligence Period, Buyer, in its sole judgment, and absolute discretion, determines that Buyer is not satisfied with the condition of the Real Estate, the Property, the Space Leases, the Ground Leases, or the Service Contracts then, prior to the end of the Due Diligence Period, Buyer shall have the right by giving written notice to Seller and Escrow Agent to cancel and terminate this Agreement without liability except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In the event Buyer fails to give such notice prior to the end of the Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall lapse.

CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD. 4.1 (( A) Buyer shall at Closing accept the Property in AS IS physical condition as exists on the date hereof, subject to reasonable wear and tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer will have the Due Diligence Period to inspect the Shopping Center or cause an inspection thereof to be made on Buyer’s behalf and it is understood and agreed that neither Seller nor any person acting or purporting to act for Seller has made or now makes any representation as to the physical condition (latent or patent or otherwise), income, expense, operation, legality of current rents, or any other matter of thing affecting or relating to the Shopping Center except as herein specifically set forth. Buyer hereby expressly acknowledges that except as expressly set forth herein, no such representations have been made and Buyer further agrees to take the Shopping Center “as is” as of the date hereof and subject to normal use, wear, tear, and deterioration between now and Closing. Buyer agrees that Seller is not liable or bound in any manner by any financial or written statements, representations, real estate brokers’ “set-ups”, or information pertaining to the Shopping Center furnished by any real estate broker, agent, employee, trustee, servant or other person, unless the same are specifically set forth herein. It is understood and agreed that all understandings and agreements heretofore had between the parties are hereby merged in this Agreement which alone fully and completely expresses their agreement and that the same is entered into after full investigation, neither party relying upon any statement or representation made by the other not embodied in this Agreement.