ACCORDANCE WITH SECTION 6.5.2(A) ABOVE (ANY SUCH CONSTRUCTION, A "RETAIL LAND
BUILD-OUT") PURSUANT TO A BUDGET FIRST REASONABLY APPROVED BY THE BUYER AND A
CONTRACT REQUIRING THAT SUCH CONSTRUCTION SHALL BE PERFORMED FREE FROM DEFECTS,
LIEN-FREE, USING ONLY NEW BUILDING MATERIALS AND IN COMPLIANCE WITH ALL
APPLICABLE LAWS (IN EACH CASE, A "RETAIL LAND BUILD-OUT CONTRACT").
ANY RETAIL
LAND BUILD-OUT SHALL BE BID IN ACCORDANCE WITH COMPETITIVE BIDDING PROCEDURES
REASONABLY APPROVED BY BUYER.
BUYER SHALL HAVE THE RIGHT TO (X) PARTICIPATE IN
THE FORMULATION OF SUCH BIDDING PROCEDURES, (Y) REASONABLY APPROVE ALL
CONTRACTORS AND SUB-CONTRACTORS AND (Z) REASONABLY APPROVE ALL RETAIL LAND
BUILD-OUT CONTRACT (INCLUDING, WITHOUT LIMITATION, GENERAL CONTRACTOR
AGREEMENTS, ARCHITECT AGREEMENTS AND OTHER SIMILAR AGREEMENTS), AND ALL SUCH
AGREEMENTS SHALL BE AT MARKET TERMS AND WITH NON-AFFILIATED THIRD PARTIES.
IN
CONNECTION THEREWITH, SELLER SHALL (I) DELIVER TO BUYER FOR BUYER'S REASONABLE
APPROVAL A BUDGET AND ALL PLANS AND SPECIFICATIONS FOR ANY RETAIL LAND
BUILD-OUT, (II) REASONABLY COOPERATE AND CONSULT WITH BUYER WITH RESPECT TO ANY
RETAIL LAND BUILD-OUT AND (III) USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE
THAT ANY RETAIL LAND BUILD-OUT OCCURS IN ACCORDANCE WITH SUCH PLANS AND
SPECIFICATIONS AND WITH THE RELEVANT LEASE AND IS OTHERWISE REASONABLY
SATISFACTORY TO BUYER.
AT THE RETAIL CLOSING, SELLER SHALL ASSIGN AND BUYER
SHALL ASSUME ALL APPLICABLE WARRANTIES AND RETAIL LAND BUILD-OUT CONTRACTS,
TOGETHER WITH ANY ANCILLARY AGREEMENTS RELATED TO ANY RETAIL LAND BUILD-OUT
COVERED BY THE RELEVANT APPROVED BUDGET.
UNTIL THE RETAIL CLOSING DATE, SELLER
SHALL CAUSE ALL PUNCH LIST ITEMS RELATED TO ANY RETAIL LAND BUILD-OUT TO BE
COMPLETED AND SHALL REPAIR ANY DEFECTS IN ANY RETAIL LAND BUILD-OUT PERFORMED
PRIOR TO THE RETAIL CLOSING AND REASONABLY IDENTIFIED BY BUYER.
THE LAST
SENTENCE OF THIS SECTION 6.5.2(B) SHALL SURVIVE THE RETAIL CLOSING.
1.1.60
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION
4.4 ABOVE, ON THE RETAIL CLOSING DATE THE RETAIL PURCHASE PRICE SHALL BE
ADJUSTED TO REFLECT THAT ONE HUNDRED PERCENT (100%) OF ALL HARD AND SOFT COSTS
APPROVED IN ADVANCE IN ACCORDANCE WITH SECTION 6.5.1 ABOVE (INCLUDING LEGAL
FEES, LEASING COMMISSIONS, ARCHITECTURAL FEES AND CONSTRUCTION COSTS), TOGETHER
WITH INTEREST AT 30 DAY LIBOR + 100BPS FROM THE DATE THE COST WAS INCURRED TO
RETAIL CLOSING INCURRED BY SELLER PRIOR TO THE RETAIL CLOSING DATE WITH RESPECT
TO THE RETAIL LAND BUILD-OUT AND THE RETAIL LAND LEASE-UP SHALL BE CREDITED TO
SELLER, AND ONE HUNDRED PERCENT (100%) OF ANY RENT OR OTHER INCOME GENERATED BY
THE RETAIL LAND PRIOR TO THE RETAIL CLOSING DATE SHALL BE CREDITED TO BUYER.
UNLESS AND UNTIL ALL RETAIL SPECIAL CONDITIONS ARE SATISFIED OR THE RETAIL
CLOSING OCCURS, ALL COSTS INCURRED BY SELLER WITH RESPECT TO THE RETAIL LAND
BUILD-OUT AND THE RETAIL LAND LEASE-UP SHALL BE BORNE BY SELLER.
43
DISCLAIMER, RELEASE AND ASSUMPTION.
AS AN ESSENTIAL INDUCEMENT TO SELLER TO
ENTER INTO THIS AGREEMENT, AND AS PART OF THE DETERMINATION OF THE GROSS
CONTRIBUTION CONSIDERATION, BUYER ACKNOWLEDGES, UNDERSTANDS AND AGREES AS OF THE
DATE HEREOF AND AS OF THE CLOSING DATE AS