Common use of Inspections and Access Clause in Contracts

Inspections and Access. At any reasonable time and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties to examine, inspect and investigate the same, and (ii) to access all books, records, drawings and other documentation relating to the Properties or the Leased Properties in the possession or control of Seller (collectively, the “Inspections”). Purchaser agrees to use commercially reasonable efforts to (1) keep the purpose of the Inspections confidential and (2) not disclose the existence of or terms of this Agreement to any of Seller’s personnel located at the retail operations at the Properties or Leased Properties; provided, however, that the foregoing shall not prohibit any disclosure required pursuant to any federal or state law or regulation or by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspections, which cooperation shall include, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to the condition and operation of the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. Purchaser agrees to indemnify, defend and hold Seller harmless from and against any and all claims, losses or damages suffered or incurred by Seller to the extent directly resulting from Purchaser’s or its agents’ negligence or willful misconduct in connection with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicable; provided, however, that Purchaser’s foregoing obligations shall specifically exclude any damages arising as a result of Purchaser’s discovery of any condition existing on the Property prior to Purchaser’s entry on the Property. The provisions of the immediately preceding sentence of this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days, if this Agreement shall be terminated.

Inspections and Access. At any reasonable time and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser Buyer and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Property during business hours upon forty-eight hours prior written notice to Seller’s agent, Field Sxxxx via email (fxxxxx@xxxxx.xxx) during the Due Diligence Period to examine, inspect and investigate the same, Property and (ii) to access all books, records, drawings and other documentation relating to the Properties or the Leased Properties thereto in the Seller’s possession or control of Seller (collectively, the “Inspections”), subject to the terms, conditions and limitations set forth in the following provisions of this Section 3.2. Purchaser agrees All of the Inspections shall be conducted at the expense of Buyer without contribution from Seller of any kind or amount. (a) Subject to use commercially reasonable efforts the rights of tenants under the Leases, Buyer shall have a right to (1) keep enter the Property for the purpose of conducting the Inspections confidential and for no other purpose, provided that in each such instance (i) Buyer notifies Seller’s agent of the intended Inspections not less than 48 hours prior to such entry; (ii) such Inspections are scheduled with Field Sxxxx by electronic mail (fxxxxx@xxxxx.xxx); and (2iii) Buyer is in full compliance with Section 3.2(d) hereof. At Seller’s election, a representative of Seller shall be present during any entry by Buyer or its representatives upon the Property for conducting said Inspections. Buyer shall take all necessary actions to insure that neither it nor any of its representatives shall interfere with the ongoing operations occurring at the Property during the course of performing any such Inspections, including, without limitation, any activities of tenants. Buyer shall not disclose cause or permit any mechanics’ liens or other liens to be filed against the existence Property as a result of the Inspections. Notwithstanding anything set forth herein to the contrary, Buyer shall not be permitted to: (w) perform any Phase II environmental assessments or terms any other tests that require the physical alteration of the Property (including, without limitation, borings or samplings) without the prior written consent of Seller, which may be withheld by Seller in its sole discretion; (x) review any of the Excluded Documents; (y) interview any tenants, owners or other occupants of the Property; or (z) discuss employment opportunities with any employees of Seller or Property Manager. Promptly upon (i) receipt of the written request of Seller; or (ii) termination of this Agreement for any reason, Buyer shall deliver to Seller a complete copy of any written studies, reports, tests results or similar documents prepared by or on behalf of Buyer or its agents (collectively, the “Third Party Reports”). (b) Buyer shall have until the Due Diligence Expiration Date in which to conduct its due diligence investigations and analysis of the Property and of all information pertaining to the Property to determine whether the Property is acceptable to Buyer. If during the Due Diligence Period, Buyer so elects, for any reason or no reason, Buyer may, as its sole and exclusive right and remedy, terminate this Agreement by giving written notice of termination to Seller on or before the Due Diligence Expiration Date. If Buyer does not give such notice of termination on or before the Due Diligence Expiration Date, Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2 and this Agreement shall continue in full force and effect. In the event of such termination the Exxxxxx Money shall be returned to Buyer and neither party shall have any further obligations to the other party hereunder, except for the Termination Surviving Obligations. (c) Buyer agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, equity partners, attorneys and other professionals and consultants working for Buyer in connection with the acquisition of the Property) without Seller’s personnel located at prior written consent, unless Buyer is obligated by law to make such disclosure (in which case Buyer shall provide concurrent written notice of such mandatory disclosure to Seller), any of the retail operations at the Properties reports or Leased Properties; provided, however, that the foregoing shall not prohibit any disclosure required pursuant to any federal other documentation or state law or regulation or information obtained by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspections, Buyer which cooperation shall include, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating relates to the condition Property, the Property or Seller in any way, all of which shall be used by Buyer and operation of its agents solely in connection with the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. Purchaser transactions contemplated hereby. (d) Buyer agrees to indemnify, defend and hold Seller and its members, managers, partners, trustees, beneficiaries, shareholders, directors, officers, advisors and other agents and their respective employees and affiliates (collectively, the “Indemnified Seller Parties”) harmless from and against any and all claims, losses or damages losses, damages, costs and expense (including, without limitation, attorneys fees’ and court costs) (collectively, “Claims”) suffered or incurred by any of the Indemnified Seller to the extent directly resulting from Purchaser’s Parties as a result of or its agents’ negligence or willful misconduct in connection with any activities of Buyer (including activities of any of Buyer’s employees, consultants, contractors or other agents) conducted pursuant to or in violation of this Section 3.2 or otherwise, including, without limitation, mechanics’ liens, damage to the InspectionsProperty, and Purchaser agrees injury to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicablepersons or property resulting from such activities; provided, however, that Purchaser’s foregoing obligations in no event shall specifically exclude Buyer have any damages obligation to indemnify any of the Indemnified Seller Parties with respect to Claims arising (x) as a result of PurchaserBuyer’s discovery mere discovery, without exacerbation, of any an existing environmental or other condition existing on the Property prior to Purchaser’s entry on the Property. The provisions ; or (y) solely due to the negligence or intentional misconduct of any of the immediately preceding sentence Indemnified Seller Parties. In connection with the foregoing indemnity, in the event that the Property is damaged, disturbed or altered in any way as a result of such activities, Buyer shall promptly restore the Property to its condition existing prior to the commencement of such activities. Furthermore, Buyer agrees to maintain and to cause all of its representatives or agents conducting any Inspections to maintain and have in effect workers’ compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) appropriate coverages, (ii) waiver of subrogation, and (iii) limits of not less than Three Million and 00/100 Dollars ($3,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Seller, Waterton Property Management, L.L.C., and Waterton Associates L.L.C. as additional insured parties and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Seller. Buyer shall deliver to Seller prior to commencing any of the activities described in this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days3.2, if this Agreement shall be terminatedevidence reasonably satisfactory to Seller that the insurance required hereunder is in full force and effect.

Inspections and Access. At any reasonable time and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Real Property at reasonable times and from time to time during the Due Diligence Period to examine, inspect and investigate the same, Property and (ii) to access all books, records, drawings and other documentation relating to thereto in Seller’s possession other than the Properties or the Leased Properties in the possession or control of Seller Excluded Documents (collectively, the “Inspections”), subject to the terms, conditions and limitations set forth in the following provisions of this Section 3.2. All of the Inspections shall be conducted at the expense of Purchaser agrees without contribution from Seller of any kind or amount except as may otherwise be provided for herein. (a) Purchaser shall have a right to use commercially reasonable efforts to enter upon the Real Property during the Due Diligence Period for the purpose of conducting the Inspections and for no other purpose, provided that in each such instance (i) Purchaser notifies Seller of the intended Inspections not less than one (1) keep business day prior to such entry; (ii) such Inspections are scheduled with Seller’s plant manager; and (iii) Purchaser is in full compliance with Section 3.2(d) hereof. At Seller’s election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the purpose Real Property for conducting said Inspections. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives shall unreasonably interfere with the ongoing operations occurring at the Real Property during the course of performing any such Inspections, including, without limitation, any operations of Sellers. Purchaser shall not cause or permit any mechanics’ liens or other liens to be filed against the Property as a result of the Inspections. Notwithstanding anything set forth herein to the contrary, Purchaser shall not be permitted to: (x) perform any Phase II environmental assessments or any tests that require the physical alteration of the Property (including, without limitation, borings or samplings) without the prior written consent of Seller (which consent shall not be unreasonably withheld); or (y) review any of the Excluded Documents. Promptly after receipt of the written request of Seller, Purchaser shall deliver to Seller a complete copy of any written studies, reports, tests results or similar documents prepared by or on behalf of Purchaser or its agents. (b) Purchaser shall have until the Due Diligence Expiration Date in which to conduct its Inspections confidential and analysis of the Property and of all information pertaining to the Property to determine whether the Property is acceptable to Purchaser. During the Due Diligence Period, Purchaser may terminate this Agreement for any reason or no reason, by giving written notice of termination to Seller on or before the Due Diligence Expiration Date. If Purchaser does not give such notice of termination on or before the Due Diligence Expiration Date, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2, the Xxxxxxx Money shall be non-refundable except in the event of default by Seller or as otherwise specifically provided herein, and this Agreement shall continue in full force and effect. In the event of such termination, the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder. (2c) Purchaser agrees and covenants with Seller that prior to Closing it will not disclose any of the existence of reports or terms of this Agreement any other documentation or information obtained by Purchaser which relates to the Property or Seller to any third party (other than lenders, accountants, attorneys and other professionals and consultants working for Purchaser in connection with the acquisition of the Property who agree to keep such information confidential) without Seller’s personnel located at the retail operations at the Properties or Leased Properties; providedprior written consent, however, that the foregoing which consent shall not prohibit any disclosure required pursuant be unreasonably withheld, conditioned or delayed, unless Purchaser is obligated by law to any federal or state law or regulation or make such disclosure. All diligence information acquired by governmental authorities. Seller Purchaser hereunder shall cooperate be used by Purchaser and its agents solely in connection with Purchaser in conducting the Inspections, which cooperation shall include, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to the condition and operation of the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. transactions contemplated hereby. (d) Purchaser agrees to indemnify, defend and hold Seller and Seller’s respective members, partners, trustees, beneficiaries, shareholders, directors, officers, managers, advisors and other agents and their respective employees, officers, directors and shareholders (collectively, the “Indemnified Parties”) harmless from and against any and all claims, losses or damages losses, damages, costs and expense (including, without limitation, attorneys fees’ and court costs) suffered or incurred by Seller to any of the extent directly resulting from Purchaser’s or its agents’ negligence or willful misconduct in connection with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicable; provided, however, that Purchaser’s foregoing obligations shall specifically exclude any damages arising Indemnified Parties as a result of or in connection with any activities of Purchaser (including activities of any of Purchaser’s discovery of any condition existing on the Property prior employees, consultants, contractors or other agents) conducted pursuant to Purchaser’s entry on the Property. The provisions of the immediately preceding sentence or in violation of this Section 3.2 shall survive termination or otherwise, whether the events giving rise to such indemnity claim occurred before or occur after the date hereof, including, without limitation, mechanics’ liens, damage to the Property and injury to persons or property resulting from such activities and, in connection therewith, in the event that the Property is damaged, disturbed or altered in any way as a result of such activities and Purchaser terminates this Agreement pursuant to Section 3.2(b), Purchaser shall promptly restore the Property to substantially the same condition existing prior to the commencement of such activities. The preceding indemnification applies only to the extent the claim, loss, damage, cost or expense is attributable to such actions of Purchaser or its agents (for three hundred sixty five (365) daysexample, if this Agreement there was a pre-existing condition which was exacerbated by permitted testing, then Purchaser’s obligation is limited to the extent of the exacerbation only) and it shall be terminatednot apply to extent any such matters arise from or relate to the discovery or required or permitted disclosure of a condition relating to the Property. Furthermore, Purchaser agrees to maintain and to cause all of its representatives or agents conducting any inspections to maintain and have in effect workers’ compensation insurance, with statutory limits of coverage, and commercial general liability insurance in the form of Exhibit F attached hereto. Such insurance shall name Seller, Seller and their respective lenders as additional insured parties. Purchaser shall deliver to Seller and Seller prior to entering upon the Property evidence reasonably satisfactory to Seller and Seller that the insurance required hereunder is in full force and effect.

Inspections and Access. At any reasonable time The provisions of Article 22 of the Master Lease (regarding Inspections and from time Access), are hereby made Incorporated Terms, as more particularly described in Section 17 above. It is specifically acknowledged and agreed by the Parties that Sublessee shall have the right to time prior designate certain areas of the Premises (excluding the Parking Deck) as Secured Areas in the manner contemplated by Article 22 of the Master Lease and, pursuant to its obligations under its SNDA, Master Landlord shall recognize Sublessee in lieu of Sublessor with respect thereto, subject to, and in accordance with, the applicable terms and conditions of the Master Lease. Master Landlord has consented to the close of business January __foregoing pursuant to its SNDA. Notwithstanding anything to the contrary, 2009 (the “Due Diligence Period”foregoing right(s) or earlier termination of this Agreementshall revert exclusively to Sublessor, Purchaser and its representatives Sublessee shall be permitted (i) have no further right to enter upon the Properties or Leased Properties to examine, inspect and investigate exercise the same, and Master Landlord’s agreement with respect thereto shall terminate and expire, upon the earlier to occur of (i) August 23, 2035 or (ii) Master Landlord’s receipt of a Notice of Termination. Sublessor covenants and agrees not to access all books, records, drawings deliver a Notice of Termination to Master Landlord prior to: (i) the occurrence of an Event of Default by Sublessee (including the expiration of any applicable notice and/or cure periods provided herein) which entitles Sublessor to terminate this Sublease; (ii) Sublessee’s receipt of written notice of Sublessor’s election to terminate this Sublease; and other documentation relating (iii) the expiration of a period of ten (10) days following Sublessee’s receipt of such notice of election to the Properties or the Leased Properties in the possession or control terminate. Should Sublessor improperly send a Notice of Seller (collectivelyTermination, the “Inspections”). Purchaser agrees same shall constitute an immediate event of default under this Sublease (without the benefit of any notice or cure periods otherwise provided for in Section 16.2 above) and Sublessee shall have all rights and remedies available to use commercially reasonable efforts to (1) keep the purpose of the Inspections confidential and (2) not disclose the existence of or terms of this Agreement to any of Seller’s personnel located it hereunder, at the retail operations at the Properties or Leased Properties; provided, however, that the foregoing shall not prohibit any disclosure required pursuant to any federal or state law or regulation or by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspectionsequity, which cooperation shall includeincluding, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to timelimitation, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to the condition and operation of the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. Purchaser agrees to indemnify, defend and hold Seller harmless from and against any and all claims, losses or damages suffered or incurred by Seller to the extent directly resulting from Purchaser’s or its agents’ negligence or willful misconduct in connection with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicable; provided, however, that Purchaser’s foregoing obligations shall specifically exclude any damages arising as a result of Purchaser’s discovery of any condition existing on the Property prior to Purchaser’s entry on the Property. The provisions of the immediately preceding sentence of this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days, if this Agreement shall be terminatedinjunctive relief.

Inspections and Access. (a) At any reasonable time and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) Closing or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Real Property to examine, inspect and investigate the sameReal Property, and (ii) to access all books, records, drawings and other documentation relating to the Properties or the Leased Properties in the possession or control of Seller (collectively, the “Inspections”). Purchaser agrees to use commercially reasonable efforts to (1) keep the purpose of the Inspections confidential and (2) not disclose the existence of or terms of this Agreement to any of Seller’s personnel located at the retail operations at the Properties or Leased PropertiesReal Property; provided, however, that the foregoing shall not prohibit any disclosure required pursuant to any federal or state law or regulation or by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspections, which cooperation shall include, without limitation facilitating interviews with Leased Property landlordsSpace Lease Tenants. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to the condition and operation of the Properties. . (b) Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. . (c) Purchaser agrees to indemnify, defend and hold Seller harmless from and against any and all claims, losses or damages suffered or incurred by Seller to the extent directly resulting from Purchaser’s or its agents’ ' negligence or willful misconduct in connection with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicable; provided, however, that Purchaser’s foregoing obligations shall specifically exclude any damages arising as a result of Purchaser’s discovery of any condition existing on the Property prior to Purchaser’s entry on the Property. The provisions of the immediately preceding sentence of this Section 3.2 3.2(c) shall survive termination of this Agreement for three hundred sixty five (365) days, if this Agreement shall be terminated.

Inspections and Access. At any reasonable time (a) Seller hereby grants a license to Purchaser, its employees, consultants, contractors and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) other agents to enter upon the Properties or Leased Properties Property to examineconduct examinations, inspect inspections and investigate investigations the same, Property and (ii) to access all books, records, drawings drawings, and other documentation relating to thereto located at the Properties or the Leased Properties in the possession or control of Seller Property (collectively, the “"Inspections”"). Purchaser agrees to use commercially reasonable efforts , subject to (1) keep the rights of all tenants of the Property, (2) the terms, conditions and limitations set forth in this Agreement, and (3) the terms and conditions of the Confidentiality Agreement. Without limiting the preceding sentence, Purchaser acknowledges that (A) Tenant has the right to at least five (5) business days' prior written notice of entry upon the Property, (B) Tenant may require any persons desiring access to the Property to submit to such reasonable inspection and security procedures as Tenant regularly employs in its ordinary business operations at the Property, and (C) certain areas of the Property may be subject to access restrictions imposed by the government of the United States and Purchaser agrees to abide by any such restrictions identified in this sentence. Purchaser shall have a right to enter upon the Property pursuant to the license granted hereby for the purpose of conducting the Inspections confidential and for no other purpose, and provided that in each such instance: (x) Purchaser notifies Seller of such Inspections not less than six (6) business days prior to such entry or such Inspections are otherwise scheduled with and approved by Seller and Tenant; and (2y) not disclose Purchaser is in full compliance with all of the existence of or terms of this Agreement Agreement. At Seller's election, a representative of Seller may be present during any entry by Purchaser or its representatives upon the Property for conducting said Inspections. Purchaser shall take all necessary actions to ensure that neither it nor any of Seller’s personnel located its representatives shall interfere with any tenants or occupants or the ongoing operations occurring at the retail operations Property during the course of performing any such Inspections. Purchaser shall not cause or permit any mechanics' liens, materialmens' liens or other liens to be filed against the Property as a result of the Inspections. Purchaser shall have the right to conduct, at its sole cost and expense, any inspections, studies or tests that Purchaser deems appropriate in determining the Properties or Leased Propertiescondition of the Property; provided, however, that the foregoing Purchaser shall not prohibit be permitted to perform any disclosure required pursuant to Phase II environmental assessments or any federal tests that require the physical alteration of the Property (including any borings or state law or regulation or by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspections, which cooperation shall includesamplings), without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to the condition and operation of the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty prior written consent of Seller under this Agreement. in each instance. (b) Purchaser agrees to shall indemnify, defend and hold Seller Seller, its tenants and their respective officers, directors, employees, brokers and other agents and representatives (collectively, the "Indemnified Parties") harmless from and against any and all claims, losses or damages losses, damages, costs and expense (including, without limitation, reasonable attorneys fees' and court costs) suffered or incurred by Seller to any of the extent directly resulting from Purchaser’s Indemnified Parties arising out of or its agents’ negligence or willful misconduct in connection with the Inspectionsactivities of Purchaser (or Purchaser's employees, and Purchaser agrees to restore any Property damaged by consultants, contractors or other agents) on or about the Inspections to its condition prior to Purchaser’s Inspections Property, including mechanics' liens, damage to the extent practicable; providedProperty and injury to persons or property. Without limiting the foregoing, howeverin the event that the Property is damaged, that Purchaser’s foregoing obligations shall specifically exclude disturbed or altered in any damages arising way as a result of Purchaser’s discovery of any such activities, Purchaser shall promptly restore the Property to its condition existing on prior to the commencement of such activities. Furthermore, Purchaser agrees to maintain, and to cause all of its contractors conducting any Inspections to maintain, and have in effect comprehensive general liability insurance with a waiver of subrogation in favor of Seller and Seller's designees, and limits of not less than One Million Dollars ($1,000,000), combined single limit, for personal injury, including bodily injury and death, and property damage. Such insurance shall name Seller and Seller’s designees as additional insured parties and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Seller. Purchaser shall deliver to Seller, prior to any entry upon the Property, certificates evidencing that the insurance required hereunder is in full force and effect. (c) Purchaser shall not contact or communicate with Tenant without at least two (2) business days advance notice to Seller in each instance. At Seller's election, a representative of Seller shall be present during any discussions or interviews between Purchaser or its representatives and Tenant or its representatives. Notwithstanding any consent to any contact with Tenant or the presence of Seller or its representatives at any discussions or interviews with Tenant, Purchaser shall not engage in any oral or written communications with Tenant regarding the possibility of renegotiating any current terms of the RR Leases or any proposed amendments to or renewals or extensions of the RR Leases. Purchaser shall not agree to any confidentiality or other agreement with Tenant that prohibits Purchaser from disclosing to Seller any communications or information exchanged between Purchaser and Tenant prior to Closing. (d) If, during the Due Diligence Period, Purchaser determines that the Property prior is unacceptable to Purchaser’s entry Purchaser in its sole and absolute discretion, Purchaser may, as its sole and exclusive right and remedy, terminate this Agreement by giving written notice of termination to Seller on or before the Property. The Due Diligence Expiration Date in accordance with the provisions of Section 11 below, which, if Purchaser's reason for termination is one or more material enviornmental defects, such notice shall describe such environmental defects in reasonable detail. If Purchaser does not give such notice of termination on or before the immediately preceding sentence of Due Diligence Expiration Date, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (3653.2(d) days, if and this Agreement shall continue in full force and effect. In the event of such termination, $100,000 (the “Termination Amount”) of the Xxxxxxx Money shall be terminatedpaid to Seller, the remainder of the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Termination Surviving Obligations, provided that if Purchaser's termination is due solely to one or more material environmental defects to which Purchaser has reasonably objected in a notice to Seller prior to the Due Diligence Expiration Date and Seller does not agree to cure such defect(s) by written notice given by the later of (i) the Due Diligence Expiration Date or (ii) five (5) business days after receipt of Purchaser's notice of such defect(s) (the Closing Date being automatically extended as necessary to allow for such period), then all of the Xxxxxxx Money shall be returned to Purchaser. If Seller agrees to cure such defect(s), then Purchaser's termination shall be automatically nullified and the Closing Date shall be extended as reasonably necessary for Seller to effectuate such cure, but in no event shall the extension exceed 30 days.

Inspections and Access. At Purchaser and its representatives have been permitted to enter upon the Real Property for purposes of conducting its due diligence and shall be permitted to continue to enter upon the Real Property at any reasonable time and from time to time prior to during the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Period to examine, inspect and investigate the same, Property and (ii) to access all books, records, drawings and other documentation relating to the Properties or the Leased Properties thereto in the Seller’s possession or control of Seller (collectively, the “Inspections”), subject to the terms, conditions and limitations set forth in the following provisions of this Section 3.2. All of the Inspections shall be conducted at the expense of Purchaser agrees without contribution from Seller of any kind or amount. (a) Purchaser shall have a right to use commercially reasonable efforts to (1) keep enter upon the Real Property for the purpose of conducting the Inspections confidential and for no other purpose, provided that in each such instance (i) Purchaser notifies Seller of the intended Inspections not less than 24 hours prior to such entry, (ii) such Inspections are scheduled with Seller’s property manager, and (2iii) Purchaser is in full compliance with Section 3.2(d) hereof. At Seller’s election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Real Property for conducting said Inspections. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives shall interfere with the ongoing operations occurring at the Real Property during the course of performing any such Inspections, including, without limitation, any operations of tenants. Purchaser shall not disclose cause or permit any mechanics’ liens or other liens to be filed against the existence Property as a result of the Inspections. Notwithstanding anything set forth herein to the contrary, Purchaser shall not be permitted to: (x) perform any Phase II environmental assessments or terms any tests that require the physical alteration of the Property (including, without limitation, borings or samplings) without the prior written consent of Seller which may be withheld in Seller’s sole discretion; or (y) review any of the Excluded Documents. Promptly after receipt of the written request of Seller, Purchaser shall deliver to Seller a complete copy of any written studies, reports, tests results or similar documents prepared by or on behalf of Purchaser or its agents. Any such reports delivered by Purchaser pursuant to this Section 3.2(a) shall be without representation or warranty of any kind. (b) Prior to Closing, Purchaser shall have until the Due Diligence Expiration Date in which to conduct its due diligence investigations and analysis of the Property and of all information pertaining to the Property to determine whether the Property is acceptable to Purchaser in its sole discretion. On or prior to the Due Diligence Expiration Date, Purchaser may, as its sole and exclusive right and remedy, terminate this Agreement for any reason in Purchaser’s sole discretion by giving written notice of termination to any Seller on or before the Due Diligence Expiration Date. If Purchaser does not give such notice of termination on or before the Due Diligence Expiration Date, Purchaser shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2(b) and this Agreement shall continue in full force and effect. In the event this Agreement is terminated by Purchaser pursuant to this Section 3.2(b) and upon Purchaser’s return to Seller of Seller’s personnel located at due diligence deliveries, the retail operations at Initial Deposit shall be returned to Purchaser and neither party shall have any further obligations to the Properties or Leased Properties; providedother party hereunder, however, that except for the foregoing shall Surviving Obligations. (c) Purchaser agrees and covenants with Seller to hold in confidence and not prohibit any disclosure required pursuant to disclose to any federal or state law or regulation or by governmental authorities. Seller shall cooperate with third party (other than lenders, accountants, attorneys and other professionals and consultants working for Purchaser in conducting connection with the Inspectionsacquisition of the Property, provided such disclosure is handled in a confidential manner and such persons are notified of this confidentiality provision) without Seller’s prior written consent, unless Purchaser is obligated by law to make such disclosure, any of the reports or any other documentation or information obtained by Purchaser which cooperation relates to the Property or Seller in any way, all of which shall includebe used by Purchaser and its agents solely in connection with the transactions contemplated hereby. Notwithstanding the foregoing, Purchaser and Seller hereby acknowledge and agree that Purchaser shall have the right, without limitation facilitating interviews having to obtain the prior approval of Seller, to file any notice or other documents and/or perform any other action required with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating respect to the condition transaction under the rules and operation regulations of the Properties. Notwithstanding Securities and Exchange Commission and/or any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. securities exchange. (d) Purchaser agrees to indemnify, defend and hold Seller and its members, managers, partners trustees, officers, advisors and other agents and their respective employees, officers, members and managers (collectively, the “Indemnified Parties”) harmless from and against any and all claimsloss, losses cost, injury, damage, liability, claim or damages suffered expense, including, without limitation, reasonable attorneys’ fees and court costs, and liability of any kind arising out of or incurred by Seller to the extent directly resulting from in connection with Purchaser’s activities on the Property, including, without limitation, the acts and omissions of Purchaser’s agents, employees, architects, engineers and other personnel (excluding, however, any loss, liability, damage, injury to claim arising out of (a) the acts or omissions of Seller or its agents’ negligence , employees, or willful misconduct in connection contractors, or (b) the mere discovery of adverse information, defects or damage with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections respect to the extent practicable; providedProperty). In the event that the Property is damaged, however, that Purchaser’s foregoing obligations shall specifically exclude disturbed or altered in any damages arising way as a result of Purchaser’s discovery of any such activities, Purchaser shall promptly restore the Property to its condition existing on the Property prior to Purchaser’s entry on the Propertycommencement of such activities. The provisions Furthermore, Purchaser agrees to maintain and to cause all of its representatives or agents conducting any Inspections to maintain and have in effect workers’ compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) appropriate coverages, (ii) waiver of subrogation, and (iii) limits of not less than One Million and 00/100 ($1,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Seller, its lender and its property manager as additional insured parties and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Seller. Purchaser shall deliver to Seller prior to commencing any of the immediately preceding sentence of activities described in this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days3.2, if this Agreement shall be terminatedevidence reasonably satisfactory to Seller that the insurance required hereunder is in full force and effect.

Inspections and Access. At any reasonable time and from time to time prior to the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser Buyer and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Property during business hours upon forty-eight hours prior written notice to Seller’s agent, Field Xxxxx via email (xxxxxx@xxxxx.xxx) during the Due Diligence Period to examine, inspect and investigate the same, Property and (ii) to access all books, records, drawings and other documentation relating to the Properties or the Leased Properties thereto in the Seller’s possession or control of Seller (collectively, the “Inspections”), subject to the terms, conditions and limitations set forth in the following provisions of this Section 3.2. Purchaser agrees All of the Inspections shall be conducted at the expense of Buyer without contribution from Seller of any kind or amount. (a) Subject to use commercially reasonable efforts the rights of tenants under the Leases, Buyer shall have a right to (1) keep enter the Property for the purpose of conducting the Inspections confidential and for no other purpose, provided that in each such instance (i) Buyer notifies Seller’s agent of the intended Inspections not less than 48 hours prior to such entry; (ii) such Inspections are scheduled with Field Xxxxx by electronic mail (xxxxxx@xxxxx.xxx); and (2iii) Buyer is in full compliance with Section 3.2(d) hereof. At Seller’s election, a representative of Seller shall be present during any entry by Buyer or its representatives upon the Property for conducting said Inspections. Buyer shall take all necessary actions to insure that neither it nor any of its representatives shall interfere with the ongoing operations occurring at the Property during the course of performing any such Inspections, including, without limitation, any activities of tenants. Buyer shall not disclose cause or permit any mechanics’ liens or other liens to be filed against the existence Property as a result of the Inspections. Notwithstanding anything set forth herein to the contrary, Buyer shall not be permitted to: (w) perform any Phase II environmental assessments or terms any other tests that require the physical alteration of the Property (including, without limitation, borings or samplings) without the prior written consent of Seller, which may be withheld by Seller in its sole discretion; (x) review any of the Excluded Documents; (y) interview any tenants, owners or other occupants of the Property; or (z) discuss employment opportunities with any employees of Seller or Property Manager. Promptly upon (i) receipt of the written request of Seller; or (ii) termination of this Agreement for any reason, Buyer shall deliver to Seller a complete copy of any written studies, reports, tests results or similar documents prepared by or on behalf of Buyer or its agents (collectively, the “Third Party Reports”). (b) Buyer shall have until the Due Diligence Expiration Date in which to conduct its due diligence investigations and analysis of the Property and of all information pertaining to the Property to determine whether the Property is acceptable to Buyer. If during the Due Diligence Period, Buyer so elects, for any reason or no reason, Buyer may, as its sole and exclusive right and remedy, terminate this Agreement by giving written notice of termination to Seller on or before the Due Diligence Expiration Date. If Buyer does not give such notice of termination on or before the Due Diligence Expiration Date, Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2 and this Agreement shall continue in full force and effect. In the event of such termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligations to the other party hereunder, except for the Termination Surviving Obligations. (c) Buyer agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, equity partners, attorneys and other professionals and consultants working for Buyer in connection with the acquisition of the Property) without Seller’s personnel located at prior written consent, unless Buyer is obligated by law to make such disclosure (in which case Buyer shall provide concurrent written notice of such mandatory disclosure to Seller), any of the retail operations at the Properties reports or Leased Properties; provided, however, that the foregoing shall not prohibit any disclosure required pursuant to any federal other documentation or state law or regulation or information obtained by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspections, Buyer which cooperation shall include, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to time, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating relates to the condition Property, the Property or Seller in any way, all of which shall be used by Buyer and operation of its agents solely in connection with the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. Purchaser transactions contemplated hereby. (d) Buyer agrees to indemnify, defend and hold Seller and its members, managers, partners, trustees, beneficiaries, shareholders, directors, officers, advisors and other agents and their respective employees and affiliates (collectively, the “Indemnified Seller Parties”) harmless from and against any and all claims, losses or damages losses, damages, costs and expense (including, without limitation, attorneys fees’ and court costs) (collectively, “Claims”) suffered or incurred by any of the Indemnified Seller to the extent directly resulting from Purchaser’s Parties as a result of or its agents’ negligence or willful misconduct in connection with any activities of Buyer (including activities of any of Buyer’s employees, consultants, contractors or other agents) conducted pursuant to or in violation of this Section 3.2 or otherwise, including, without limitation, mechanics’ liens, damage to the InspectionsProperty, and Purchaser agrees injury to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicablepersons or property resulting from such activities; provided, however, that Purchaser’s foregoing obligations in no event shall specifically exclude Buyer have any damages obligation to indemnify any of the Indemnified Seller Parties with respect to Claims arising (x) as a result of PurchaserBuyer’s discovery mere discovery, without exacerbation, of any an existing environmental or other condition existing on the Property prior to Purchaser’s entry on the Property. The provisions ; or (y) solely due to the negligence or intentional misconduct of any of the immediately preceding sentence Indemnified Seller Parties. In connection with the foregoing indemnity, in the event that the Property is damaged, disturbed or altered in any way as a result of such activities, Buyer shall promptly restore the Property to its condition existing prior to the commencement of such activities. Furthermore, Buyer agrees to maintain and to cause all of its representatives or agents conducting any Inspections to maintain and have in effect workers’ compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) appropriate coverages, (ii) waiver of subrogation, and (iii) limits of not less than Three Million and 00/100 Dollars ($3,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Seller, Waterton Property Management, L.L.C., and Waterton Associates L.L.C. as additional insured parties and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Seller. Buyer shall deliver to Seller prior to commencing any of the activities described in this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days3.2, if this Agreement shall be terminatedevidence reasonably satisfactory to Seller that the insurance required hereunder is in full force and effect.

Inspections and Access. At Purchaser and its representatives shall be permitted to enter upon the Property at any reasonable time and from time to time prior to during the close of business January __, 2009 (the “Due Diligence Period”) or earlier termination of this Agreement, Purchaser and its representatives shall be permitted (i) to enter upon the Properties or Leased Properties Period to examine, inspect and investigate the Property (collectively, the "Inspections") and all books, records, drawings, and other documentation relating thereto in Seller's possession, subject to the terms, conditions and limitations set forth in the following paragraphs. (a) Purchaser shall have a right to enter upon the Property for the purpose of conducting the Inspections and for no other purpose provided that in each such instance (i) Purchaser notifies Seller of such Inspections not less than 48 hours prior to such entry; (ii) such Inspections are subject to and scheduled with Seller's property manager; and (iii) Purchaser is in full compliance with Section 3.2(f) hereof. At Seller's election, a representative of Seller shall be present during any entry by Purchaser or its representatives upon the Property for conducting said Inspections. Purchaser shall take all necessary actions to insure that neither it nor any of its representatives shall interfere with the ongoing operations occurring at the Property during the course of performing any such Inspections. Purchaser shall not cause or permit any mechanic liens, materialmen's liens or other liens to be filed against the Property as a result of the Inspections. (b) Purchaser shall have through the last day of the Due Diligence Period in which to conduct its due diligence investigations and analysis of the Property and of all information pertaining to the Property, and, in Purchaser's sole discretion, to determine whether the Property is acceptable to Purchaser. If during the Due Diligence Period, Purchaser becomes aware of any problem or defect in the Property or other aspect of the Property which Purchaser determines makes the Property unsuitable to Purchaser, Purchaser may terminate this Agreement by giving written notice of termination to Seller on or before the last day of the Due Diligence Period. If Purchaser does not timely give notice of termination as aforesaid, Purchaser shall be deemed to have accepted the Property and this Agreement shall continue in full force and effect. In the event of such termination, the Earnxxx Xxxey shall be returned to Purchaser and neither party shall have any further obligations to the other party hereunder, except for the Surviving Obligations. (c) Purchaser shall, as soon as reasonably practicable and, in any event, at least five (5) days prior to the Closing Date, notify Seller in writing requesting termination of any or all of the Service Contracts that Purchaser desires to have terminated. Seller shall give any required notice of termination as soon as reasonably practicable after receipt of Purchaser's notice requesting same. Notwithstanding the foregoing, Purchaser acknowledges and agrees that any such termination by Seller (i) may be conditioned on the completion of the Closing, and (ii) to access all books, records, drawings and other documentation relating to shall be effective only after expiration of any notice or grace period specified by the Properties or the Leased Properties in the possession or control of Seller (collectively, the “Inspections”). Purchaser agrees to use commercially reasonable efforts to (1) keep the purpose terns of the Inspections confidential applicable Service Contracts. Any Service Contracts not effectively terminated as of the Closing Date shall be assumed by Purchaser. (d) Purchaser shall have the right to conduct, at its sole cost and (2) not disclose expense, any inspections, studies or tests that Purchaser deems appropriate in determining the existence condition of or terms of this Agreement to any of Seller’s personnel located at the retail operations at the Properties or Leased Properties; Property, provided, however, that the foregoing shall Purchaser is not prohibit permitted to perform any disclosure required pursuant to any federal or state law or regulation or by governmental authorities. Seller shall cooperate with Purchaser in conducting the Inspectionsintrusive testing, which cooperation shall includeincluding, without limitation facilitating interviews with Leased Property landlords. Seller agrees to respond promptly to any inquiry which Purchaser may make from time to timelimitation, and shall instruct its property manager and other agents and employees to give specific answers to Purchaser’s inquiries from time to time relating to a Phase II environmental assessment or borings, without the condition and operation of the Properties. Notwithstanding any other provision of this Agreement, no Inspections shall constitute a waiver or relinquishment on the part of Purchaser of its rights under any covenant, condition, representation, or warranty of Seller under this Agreement. Purchaser agrees to indemnify, defend and hold Seller harmless from and against any and all claims, losses or damages suffered or incurred by Seller to the extent directly resulting from Purchaser’s or its agents’ negligence or willful misconduct in connection with the Inspections, and Purchaser agrees to restore any Property damaged by the Inspections to its condition prior to Purchaser’s Inspections to the extent practicable; provided, however, that Purchaser’s foregoing obligations shall specifically exclude any damages arising as a result of Purchaser’s discovery of any condition existing on the Property prior to Purchaser’s entry on the Property. The provisions of the immediately preceding sentence of this Section 3.2 shall survive termination of this Agreement for three hundred sixty five (365) days, if this Agreement shall be terminated.prior