Common use of Entry, Insurance and Indemnity Clause in Contracts

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five (5) Business Days’ prior written notice of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller and the Tenant of such Site so as to minimize, to the greatest extent possible, any interference with the business of the Tenant of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a), provided that the failure of Seller to exercise that right will not delay or suspend Buyer’s right to enter. (b) Buyer may not conduct any invasive testing, drilling, or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site. (c) Notwithstanding the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a Phase I performed by a reputable consultant for any Site that concludes a Phase II environmental study of aspects of such Site needs to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject Site, Buyer will provide a separate written notice thereof to Seller (each, a “Phase II Notice”) prior to the expiration of the Diligence Period. Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; (iii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased or financed by a reasonable, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth (60th) day after Buyer received approval to perform the Phase II study. (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 per occurrence and $10,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of Buyer’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,000, respectively. (e) Buyer will pay all costs incurred in connection with Buyer’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE). Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five two (52) Business Days’ prior written notice of any desired entry by any Buyer Parties onto any Site Site, which notice may be given by e-mail to perform any testing or inspections and must Xx. Xxxxx Xxxxx (email: xxxxxx@xxxxxxxx.xxx), provided that contemporaneous notice is also given to Seller as required by Section 7.1 hereof. Buyer shall coordinate such entry and any related testing or inspections with Seller and the Tenant of such Site so as to minimize, to the greatest extent possible, any interference with the business of the Tenant of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable mannerSeller. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site. All such inspections must be performed in a manner that is intended not to damage any Site and to avoid any unreasonable interference with the use of the Property by Seller or any Tenants, subtenants, occupants, licensees, customers or invitees of the Property or with the activities occurring thereon. Buyer and the Buyer Parties will comply with the reasonable rules and restrictions imposed by Seller or any Tenant, subtenant, occupant or licensee of the Property (as to which such party’s premises) and with the terms of all Leases affecting the areas entered. Buyer hereby acknowledges and agrees that it has been provided with various Leases and other occupancy agreements affecting the Property and, as such, is aware of (or has the ability to familiarize itself with) all such rules, restrictions and/or terms therein. To the extent Seller wishes to impose additional reasonable rules and restrictions, it may do so by providing written notice was required pursuant thereof to the first sentence of this Section 2.3(a), provided that the failure of Seller to exercise that right will not delay or suspend Buyer’s right to enter. (b) Buyer may will not have the right to conduct any “Phase II” environmental assessments or to otherwise perform any invasive testing, drilling, testing or boring at any Site, work (such as the collection of soil or any environmental testing water samples or other tests involving the penetration of the surface or subsurface of the Property or of any Site other than a standard ASTM components of the property improvements) (“Phase I” environmental study, Invasive Work”) without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and(except as hereinafter provided) and may, if granted, will be conditioned upon such precautions as Seller deems Agreement of Purchase and Sale National Credit Industrial Portfolio 35659245v1 advisable to protect itself, the Tenant, itself and the Site. (c) Notwithstanding the provisions of Section 2.3(b)Property. If, if as part of Buyer’s diligence however, Buyer obtains a an ASTM Phase I environmental study performed by a reputable consultant for any Site that concludes a Phase II environmental study of any Site (or aspects of such Site thereof) needs to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject Siteperformed, Buyer will provide a separate written notice thereof to Seller (each, a the “Phase II Notice”) prior to the expiration following its receipt of the Diligence Periodsuch ASTM Phase I environmental study. Buyer’s If Buyer provides a Phase II Notice Notice, Buyer will include the following items, all of which will be subject thereafter promptly provide to Seller, for Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property Site relating to such Phase II: , a written request for approval accompanied by (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; , (iiiii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; Site, (iii) a copy of Buyer’s ASTM Phase I environmental study containing the recommendation for the Phase II, and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, Seller and the other Seller Parties, and the Tenant of the subject Site Parties with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts protection not less than are is required under Section 2.3(d2.3(c) of the this Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance Upon receipt of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject foregoing, Seller shall promptly review and shall not unreasonably withhold its approval to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II studysuch request. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performedII. If the Phase II study is approved and performed, then upon Upon request by Seller, Buyer will provide a copy of the completed Phase II report to Seller when completedSeller. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice The parties agree that the performance of a “Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such I” Environmental Site as a Supplemental Excluded Site Assessment pursuant to Section 1.6 above. If the Phase II study is performed but ASTM protocol and/or any indoor air quality sampling or radon testing that, in any case, does not resolve entail any penetration of the subject issue(s) in a manner that would allow surface of the Property to be purchased or financed by a reasonablecollection of any soil or water samples, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case does not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth (60th) day after Buyer received approval to perform the Phase II studyconstitute Invasive Work. (dc) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability with a financially responsible insurance company covering liabilities arising out from the activities of the Buyer and all Buyer Parties activities in, upon, about or with respect to the Property, with Property and Buyer’s indemnification obligations under this Agreement. Such insurance policy must have limits of at least $3,000,000 1,000,000 per occurrence and $10,000,000 5,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of Buyer’s indemnification and defense obligations under this Agreement and must (i) name Seller Seller, the applicable Tenant and the other Seller Parties as additional insureds with respect to all Claims matters arising out of or relating to the activities of the Buyer or any other Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller Seller, any applicable Tenant and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has of such insurance coverages in force coverage prior to any entry by a Buyer Party upon any or inspection of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,000, respectivelyProperty. (ed) Buyer will pay all costs incurred in connection with Buyer’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site the Property by such activitiesactivities so that the Property is repaired and restored to substantially the same condition as it was in immediately prior to such damage, and will not permit any mechanics or other liens to be filed against any Site the Property as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, UPON OR ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE THE PROPERTY (ENVIRONMENTAL OR OTHERWISE)) OR FOR CLAIMS TO THE EXTENT CAUSED SOLELY BY SELLER’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.. Agreement of Purchase and Sale National Credit Industrial Portfolio 35659245v1

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five two (52) Business Days’ prior written notice of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller and the Tenant of such Site so as to minimize, to the greatest extent possible, any interference with the business of the Tenant of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a), provided that the failure of Seller to exercise that right will not delay or suspend BuyerXxxxx’s right to enter. (b) Buyer may not conduct any invasive testing, drilling, or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site. (c) Notwithstanding the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a Phase I performed by a reputable consultant for any Site that concludes a Phase II environmental study of aspects of such Site needs to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject Site, Buyer will provide a separate written notice thereof to Seller (each, a “Phase II Notice”) prior to the expiration of the Diligence Period. Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with BuyerXxxxx’s environmental consultant for the performance of the Phase II; (iii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II study. Seller’s failure to respond with such seven (7) Business Day period shall be deemed Seller’s response that it is disapproving of the performance of the Phase II pursuant to the immediately preceding subsection (z). Buyer will pay all costs and expenses incurred by Buyer Xxxxx and BuyerXxxxx’s consultants in connection with the proposed Phase II study, whether or not approved or performed. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice that the Phase II cannot be performedperformed or the expiration of the immediately preceding 7 Business Day period, whichever is earlier, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Post Diligence Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased or financed by a reasonable, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Post Diligence Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, study in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Post Diligence Excluded Site as provided above, the Closing Date for such Site will be the sixtieth fifteenth (60th15th) day after Buyer received Buyer’s receipt of the Phase II study, but in no event more than thirty (30) Business Days following Xxxxx’s receipt of approval to perform the Phase II studyStudy. If Xxxxx fails to respond within the 5 Business Day periods described in this subsection (c), Buyer will be deemed to have elected to proceed to Closing on such Site. (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 per occurrence and $10,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of BuyerXxxxx’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,000, respectively. (e) Buyer will pay all costs incurred in connection with BuyerXxxxx’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE). Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five two (52) Business Days’ prior written notice of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller and the Tenant Tenants of such Site so as to minimize, to the greatest extent reasonably possible, any interference with the business of the Tenant Tenants of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease Leases for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a)Site, provided that the failure of of, or delay by, Seller to exercise that right will not delay or suspend Buyer’s right to enter; provided, further, however, that Buyer may not communicate with any Tenant, property manager or representative of any applicable Governmental Authority unless a representative of Seller is present. Seller shall use commercially reasonable efforts to make representatives available for purposes of permitting Buyer to conduct such investigations. (b) Buyer may not conduct any invasive testing, drilling, or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site. (c) Notwithstanding the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a an ASTM Phase I environmental study performed by a reputable consultant for any Site that identifies a Recognized Environmental Condition and concludes (which may be implicit) that a Phase II environmental study of aspects environmental media of such Site needs is necessary or recommended to be performed (or that further environmental investigation be performed), and as a result Buyer desires to have such a Phase II study performed for the subject Site, Buyer will provide a separate written notice thereof to Seller within five (5) Business Days of its receipt of such ASTM Phase I environmental study, but (other than with respect to the Evergreen Detention Pond Parcel, for which the Parties acknowledge no Phase I has been obtained as of the Effective Date) in no event later than the expiration of the Diligence Period (each, a “Phase II Notice”) prior to the expiration of the Diligence Period). Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property any Site relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II, such Phase I to be delivered without representation or warranty by Buyer; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; and (iii) the detailed scope of work such consultant proposes to perform for such Phase II, excluding pricing and any such terms and conditions as may be confidential, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) . Prior to performing such Phase II study, the consultant shall provide to Seller an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant Tenants of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven five (75) Business Days days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of one or more of the Tenant Tenants of the subject SiteSite if required pursuant to any applicable Lease, but which approval, except as otherwise provided in Section 2.3(b) above, will not otherwise be unreasonably withheld by Seller); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed; provided that if Seller increases the scope of the testing or investigations of any Phase II beyond what is proposed in the applicable Phase II Notice, Seller shall be liable for such incremental costs. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed, such Phase II to be delivered without representation or warranty by Buyer. If the Phase II study is not approved by Seller (or, if required by the subject Leaseone or more applicable Leases, by Tenantone or more Tenants of such Site), then within five (5) Business Days days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased Buyer’s or financed by a reasonable, experienced third-party institutional buyer or lenderany Lender’s reasonable satisfaction, then within five (5) Business Days days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval from Seller to perform the Phase II study, unless an applicable Governmental Authority must approve the completion of such Phase II study, in which event such election shall be made not later than ninety (90) days after Buyer received approval from Seller to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled (i) in order to give the Parties the time periods set forth above to send applicable notices to each other pursuant to this Section 2.3; and/or (ii) if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth thirtieth (60th30th) day after Buyer received approval to perform the Phase II study. (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 per occurrence and $10,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of Buyer’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,0005,000,000, respectively. (e) Buyer will pay all costs incurred in connection with Buyer’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-PRE- EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE)) OR THE EXTENT SUCH ADVERSE CONDITION IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ANY SELLER PARTY. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Prior to the Effective Date, Seller has provided Buyer must give with access to the Sites (subject to reasonable Seller not less than five (5) Business Days’ prior written notice restrictions, the rights of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller Tenants and the Tenant of such Site so as to minimize, to the greatest extent possible, any interference with the business of the Tenant of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a2.3), provided that the failure of Seller to exercise that right will not delay or suspend Buyer’s right to enter. (b) Prior to the Effective Date, Buyer may not conduct any invasive has conclusively satisfied itself as to the environmental condition of each Site and no additional environmental testing, drilling, including a Phase II is required by Buyer or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of permitted by Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site. (c) Notwithstanding Prior to the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a Phase I performed by a reputable consultant for any Site that concludes a Phase II environmental study of aspects of such Site needs Effective Date and up to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject SiteClosing, Buyer will provide a separate written notice thereof to Seller (each, a “Phase II Notice”) prior to the expiration of the Diligence Period. Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment has and written approval prior to the performance of any work at the Property relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; (iii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased or financed by a reasonable, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth (60th) day after Buyer received approval to perform the Phase II study. (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 1,000,000 per occurrence and $10,000,000 5,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of BuyerBxxxx’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Bxxxx has provided Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer has and will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,0005,000,000, respectively. (ed) Buyer will pay all costs incurred in connection with BuyerBxxxx’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE)) OR THE EXTENT SUCH ADVERSE CONDITION IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, ANY SELLER PARTY, OR THE APPLICABLE TENANT. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five twenty-four (524) Business Dayshours’ prior written notice of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections Individual Hotel and must coordinate such entry and any related testing or inspections with Seller and the Tenant of such Site applicable Selling Entity so as to minimize, to the greatest extent possible, any interference with the business of such Individual Hotel. All such entries shall be conducted between 9:00 a.m. and 5:00 p.m. (local time) on a Business Day, unless otherwise agreed to by Buyer and Seller. Notwithstanding the Tenant foregoing, Buyer may not enter the premises of, or contact or speak to, on-site manager (but expressly excluding any Marriott Manager in connection with Buyer’s obligations under Section 3.5 hereof), any Franchisor (but expressly excluding any Franchisor in connection with Buyer’s obligations under Section 3.5 hereof), employee, guest or occupant of such Sitethe Property without Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease Franchise Agreement for that SiteIndividual Hotel, the Hotel Management Agreement for that Individual Hotel and any applicable Hotel Leases for that Individual Hotel. All inspections must be performed in such a manner so as to not damage the Property and Buyer must otherwise conduct each entry upon any Site Individual Hotel in a commercially reasonable reasonably manner. Seller has shall have the right to have a an employee, agent or representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a), provided that the failure of Seller to exercise that right will not delay or suspend Buyer’s right to enterIndividual Hotel. (b) Buyer may not conduct any physically invasive testing, coring, drilling, or boring at any SiteIndividual Hotel, or any environmental testing of any Site Individual Hotel other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, itself and the SiteIndividual Hotel. If such invasive work is approved, then prior to any Buyer Party entering the Individual Hotel for any such invasive work, Buyer will submit to Seller for review and approval a written work plan describing to Seller’s satisfaction the proposed work and the parties which will perform such work (a “Work Plan”). Buyer will not commence such proposed invasive work prior to Seller’s written approval of any Work Plan. The parties agree that the performance of a Phase 1 Environmental Site Assessment pursuant to ASTM protocol, that does not entail any penetration of the surface of the Property or collection of any soil or water samples, does not constitute invasive work requiring a Work Plan. (c) Notwithstanding Buyer will, at its sole cost and expense, comply in all material respects with all Applicable Law with respect to its inspections conducted pursuant to this Section 2.3. Promptly following completion of any such inspections, Buyer will, at its sole cost and expense, remove from the provisions of Section 2.3(b), if Property any and all waste or debris generated from its activities and restore the Property to substantially the same condition as part existed immediately prior to the Buyer Parties’ entry to the Property. Buyer will use due care in connection with all inspections. All of Buyer’s diligence Buyer obtains a Phase I performed by a reputable consultant for any Site that concludes a Phase II environmental study agents, contractors, subcontractors or employees conducting inspections on behalf or at the request of aspects of such Site needs to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject Site, Buyer will provide a separate written notice thereof to Seller (each, a “Phase II Notice”) prior to the expiration do so only in compliance with all terms of the Diligence Period. Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; (iii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased or financed by a reasonable, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth (60th) day after Buyer received approval to perform the Phase II studythis Agreement. (d) Buyer will maintain maintain, at its sole cost and expense, and will require that any Buyer Party entering upon the Property also maintains, commercial general liability insurance on current ISO forms (or their functional equivalent) with a financially responsible insurance company insuring the Buyer Parties against any liability arising out of the Buyer Parties their activities in, upon, about or with respect to the Property, with limits of at least One Million and No/100 Dollars ($3,000,000 1,000,000.00) per occurrence and One Million and No/100 Dollars ($10,000,000 1,000,000.00) in the aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of Buyer’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,000, respectivelyIndividual Hotel. (e) Buyer (i) will pay all costs incurred in connection with Buyer’s due diligence activities regarding the Membership Interests and Property, (ii) will promptly promptly, at Buyer’s sole cost and expense, repair and restore any damage caused to the Property or any Site other property owned by a Person other than Buyer by such activities, and (iii) will not permit any mechanics or other liens to be filed against any Site the Property as a result of such activities. If any such lien is filed against the Property, Buyer will cause the same to be discharged of record, either by payment of the claim or by bonding, within twenty (20) days after receipt of written demand from Seller. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE MEMBERSHIP INTERESTS OR THE PROPERTY PRIOR TO THE CLOSING; PROVIDEDprovided, HOWEVERhowever, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement such indemnity, defense and obligation to hold the Seller Parties harmless shall not extend to protect Sellers Parties from Claims resulting from (A) the negligence or willful misconduct of Purchase any Seller or any Seller Party, and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE(B) any pre-EXISTING ADVERSE CONDITION ON ANY SITE existing condition merely discovered by Buyer (ENVIRONMENTAL OR OTHERWISE)e.g., latent environmental contamination) except to the extent Buyer’s actions exacerbate such pre-existing condition or disturb any such latent environmental contamination. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including including, without limitation limitation, the liquidated damages provisions contained in Article 66 hereof, other than the limitation that in no event will either Party be liable to the other Party for any consequential, special or punitive damages suffered by such Party. The provisions terms of this Section 2.3(e) will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Prior to the Effective Date, Seller has provided Buyer must give with access to the Sites (subject to reasonable Seller not less than five (5) Business Days’ prior written notice restrictions, the rights of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller Tenants and the Tenant of such Site so as to minimize, to the greatest extent possible, any interference with the business of the Tenant of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a2.3), provided that the failure of Seller to exercise that right will not delay or suspend Buyer’s right to enter. (b) Prior to the Effective Date, Buyer may not conduct any invasive has conclusively satisfied itself as to the environmental condition of each Site and no additional environmental testing, drilling, including a Phase II is required by Buyer or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of permitted by Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site. (c) Notwithstanding Prior to the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a Phase I performed by a reputable consultant for any Site that concludes a Phase II environmental study of aspects of such Site needs Effective Date and up to be performed, and as a result Buyer desires to have such a Phase II study performed for the subject SiteClosing, Buyer will provide a separate written notice thereof to Seller (each, a “Phase II Notice”) prior to the expiration of the Diligence Period. Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment has and written approval prior to the performance of any work at the Property relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; (iii) the detailed scope of work such consultant proposes to perform for such Phase II, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven (7) Business Days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of the Tenant of the subject Site); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed. If the Phase II study is not approved by Seller (or, if required by the subject Lease, by Tenant), then within five (5) Business Days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased or financed by a reasonable, experienced third-party institutional buyer or lender, then within five (5) Business Days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth (60th) day after Buyer received approval to perform the Phase II study. (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 1,000,000 per occurrence and $10,000,000 5,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of BuyerXxxxx’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide has provided Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer has and will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,0005,000,000, respectively. (ed) Buyer will pay all costs incurred in connection with BuyerXxxxx’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE)) OR THE EXTENT SUCH ADVERSE CONDITION IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, ANY SELLER PARTY, OR THE APPLICABLE TENANT. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.

Entry, Insurance and Indemnity. (a) Buyer must give Seller not less than five two (52) Business Days’ prior written notice of any desired entry by any Buyer Parties onto any Site to perform any testing or inspections and must coordinate such entry and any related testing or inspections with Seller and the Tenant Tenants of such Site so as to minimize, to the greatest extent reasonably possible, any interference with the business of the Tenant Tenants of such Site. Buyer’s entry rights with respect to a Site are subject to all applicable provisions of the Lease Leases for that Site. Buyer must otherwise conduct each entry upon any Site in a commercially reasonable manner. Seller has the right to have a representative present during any entry by any Buyer Parties onto any Site as to which notice was required pursuant to the first sentence of this Section 2.3(a)Site, provided that the failure of of, or delay by, Seller to exercise that right will not delay or suspend Buyer’s right to enter; provided, further, however, that Buyer may not communicate with any Tenant, property manager or representative of any applicable Governmental Authority unless a representative of Seller is present. Seller shall use commercially reasonable efforts to make representatives available for purposes of permitting Buyer to conduct such investigations. (b) Buyer may not conduct any invasive testing, drilling, or boring at any Site, or any environmental testing of any Site other than a standard ASTM “Phase I” environmental study, without in each instance obtaining the prior written approval of Seller, which approval may be withheld in Seller’s sole and absolute discretion and, if granted, will be conditioned upon such precautions as Seller deems advisable to protect itself, the Tenant, and the Site.. Agreement of Purchase and Sale 27 CMFT Portfolio (c) Notwithstanding the provisions of Section 2.3(b), if as part of Buyer’s diligence Buyer obtains a an ASTM Phase I environmental study performed by a reputable consultant for any Site that identifies a Recognized Environmental Condition and concludes (which may be implicit) that a Phase II environmental study of aspects environmental media of such Site needs is necessary or recommended to be performed (or that further environmental investigation be performed), and as a result Buyer desires to have such a Phase II study performed for the subject Site, Buyer will provide a separate written notice thereof to Seller within five (5) Business Days of its receipt of such ASTM Phase I environmental study, but (other than with respect to the Evergreen Detention Pond Parcel, for which the Parties acknowledge no Phase I has been obtained as of the Effective Date) in no event later than the expiration of the Diligence Period (each, a “Phase II Notice”) prior to the expiration of the Diligence Period). Buyer’s Phase II Notice will include the following items, all of which will be subject to Seller’s reasonable review, comment and written approval prior to the performance of any work at the Property any Site relating to such Phase II: (i) a copy of Buyer’s Phase I report containing the recommendation for the Phase II, such Phase I to be delivered without representation or warranty by Buyer; (ii) Buyer’s agreement with Buyer’s environmental consultant for the performance of the Phase II; and (iii) the detailed scope of work such consultant proposes to perform for such Phase II, excluding pricing and any such terms and conditions as may be confidential, including without limitation the details of any entry upon and activities to be performed by or for such consultant at or about the Property; and (iv) . Prior to performing such Phase II study, the consultant shall provide to Seller an insurance certificate from Buyer’s consultant evidencing that such consultant will be providing Seller, the other Seller Parties, and the Tenant Tenants of the subject Site with liability insurance (as additional insureds) for such Agreement of Purchase and Sale Coyote Portfolio consultant’s entry upon or about the Site in amounts not less than are required under Section 2.3(d) of the Agreement with respect to the Phase II. Seller will respond to Buyer’s Phase II Notice within seven five (75) Business Days days of receipt, either (x) approving Buyer’s performance of the Phase II study as requested; (y) approving Buyer’s performance of the Phase II study subject to specific comments, requirements or conditions (which may include, without limitation, the approval of one or more of the Tenant Tenants of the subject SiteSite if required pursuant to any applicable Lease, but which approval, except as otherwise provided in Section 2.3(b) above, will not otherwise be unreasonably withheld by Seller); or (z) disapproving Buyer’s performance of the Phase II study. Buyer will pay all costs and expenses incurred by Buyer and Buyer’s consultants in connection with the proposed Phase II study, whether or not approved or performed; provided that if Seller increases the scope of the testing or investigations of any Phase II beyond what is proposed in the applicable Phase II Notice, Seller shall be liable for such incremental costs. If the Phase II study is approved and performed, then upon request by Seller, Buyer will provide a copy of the Phase II report to Seller when completed, such Phase II to be delivered without representation or warranty by Buyer. If the Phase II study is not approved by Seller (or, if required by the subject Leaseone or more applicable Leases, by Tenantone or more Tenants of such Site), then within five (5) Business Days days after receiving Seller’s notice that the Phase II cannot be performed, Buyer will elect by written notice to Seller to either (A) proceed to Closing on such Site, or (B) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. If the Phase II study is performed but does not resolve the subject issue(s) in a manner that would allow the Property to be purchased Buyer’s or financed by a reasonable, experienced third-party institutional buyer or lenderany Lender’s reasonable satisfaction, then within five (5) Business Days days after receiving the Phase II report so concluding (but in any case not later than forty-five (45) days after Buyer received approval from Seller to perform the Phase II study, unless an applicable Governmental Authority must approve the completion of such Phase II study, in which event such election shall be made not later than ninety (90) days after Buyer received approval from Seller to perform the Phase II study), Buyer will elect by written notice to Seller to either (1) proceed to Closing on such Site, or (2) designate such Site as a Supplemental Excluded Site pursuant to Section 1.6 above. The Closing Date for a Site for which Buyer properly submits a Phase II Notice will be tolled (i) in order to give the Parties the time periods set forth above to send applicable notices to each other pursuant to this Section 2.3; and/or (ii) if Seller approves Buyer’s performance of the Phase II study, in which case such Site will be treated as a Delayed Closing Site and, unless such Site is ultimately designated as a Supplemental Excluded Site as provided above, the Closing Date for such Site will be the sixtieth thirtieth (60th30th) day after Buyer received approval to perform the Phase II study.. Agreement of Purchase and SaleCMFT Portfolio 28 (d) Buyer will maintain commercial general liability insurance on current ISO forms (or their functional equivalent) insuring against any liability arising out of the Buyer Parties activities in, upon, about or with respect to the Property, with limits of at least $3,000,000 per occurrence and $10,000,000 aggregate (which limits may include applicable excess or umbrella coverage). Buyer’s policy must insure the contractual liability of Buyer’s indemnification and defense obligations under this Agreement and must (i) name Seller and the other Seller Parties as additional insureds with respect to all Claims arising out of the activities of the Buyer Parties in, upon, about or with respect to the Property, (ii) contain a cross-liability provision, and (iii) be primary and noncontributing with any other insurance available to Seller and the other Seller Parties. Buyer must provide Seller with evidence that Buyer has such insurance coverages in force prior to any entry by a Buyer Party upon any of the Sites, and such insurance must be maintained in force by Buyer at all times prior to the termination of this Agreement or the Final Closing. Buyer will also require that any Buyer Party entering upon any Site also maintains insurance substantially consistent with all of the foregoing requirements, provided that the occurrence and aggregate limits for a consultant performing non-invasive work may be as low as $1,000,000 and $2,000,0005,000,000, respectively. (e) Buyer will pay all costs incurred in connection with Buyer’s due diligence activities regarding the Property, will promptly repair and restore any damage caused to any Site by such activities, and will not permit any mechanics or other liens to be filed against any Site as a result of such activities. BUYER WILL INDEMNIFY, DEFEND AND HOLD THE SELLER PARTIES HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF ANY ACTIVITIES OF THE BUYER PARTIES IN, UPON, ABOUT OR WITH RESPECT TO THE PROPERTY PRIOR TO CLOSING; PROVIDED, HOWEVER, THAT BUYER WILL NOT BE RESPONSIBLE FOR Agreement of Purchase and Sale Coyote Portfolio INDEMNIFYING SELLER FOR THE MERE DISCOVERY OF ANY PRE-EXISTING ADVERSE CONDITION ON ANY SITE (ENVIRONMENTAL OR OTHERWISE)) OR THE EXTENT SUCH ADVERSE CONDITION IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ANY SELLER PARTY. Buyer’s indemnity and insurance obligations under this Article 2 are not limited by any other limitation on damages or remedies under this Agreement, including without limitation the liquidated damages provisions contained in Article 6. The provisions of this Section will survive the Closing or any earlier termination of this Agreement.. Agreement of Purchase and SaleCMFT Portfolio 29