Coach 2013 Annual Report Download - page 741

(iii) In addition, the parties acknowledge the additional “true-up” payments of the Coach Fixed Land Cost and other
previously incurred Coach Total Development Costs that will be due and payable by the Coach Member pursuant to Section 3.3(c) of the Operating Agreement
in connection with the Coach Member’s exercise of the Coach Expansion Right thereunder.
(i) Notwithstanding anything to the contrary contained herein or in the Operating Agreement, if Developer (or its Affiliate) enters into a
binding agreement with any other purchaser of office space in the Building (other than an Affiliate of Developer or the Fund Member) prior to the Closing
which provides for (i) a fixed land cost which is less than $212 per square foot (taking into account all components comprising the Coach Fixed Land Cost),
(ii) a development fee or an allocation of Developer’s overhead costs which is less (on a per square foot basis) than the Development Fee or the Coach Overhead
Costs, respectively, or (iii) otherwise provides for an allocation or methodology of allocation for Project Costs which is more favorable in any material respect
to such other purchaser than that provided for herein, then the Coach Total Development Costs payable by the Coach Member under this Agreement and the
Operating Agreement will be reduced to equal the amount which the Coach Member would have paid had such more favorable terms been applicable to the
Coach Member.
(j) For the avoidance of doubt, the foregoing provisions of this Section 10.01 shall not limit the obligations of the Coach Member
under this Agreement to pay any other amounts which pursuant to the terms hereof do not constitute Coach Total Development Costs, as and when required to
be paid by the Coach Member pursuant to the terms hereof.
Section 10.02 Developer Default. (a) Without limiting the provisions of Section 10.01, to the extent that the Coach Total Development Costs
exceeds the Base Cost, or the cost of the Coach Finish Work is increased or the Coach Member otherwise incurs any other actual loss, cost or expense, in each
case as a result of Developer Default(s) (collectively, the “ Excess Cost” or “Excess Costs”, as applicable), then, notwithstanding any provision of this
Agreement to the contrary, Developer shall be liable for the Excess Costs (including interest thereon from the date each such Excess Cost is incurred to the date
of recovery at the Interest Rate). The obligations of Developer under this Section 10.02 are guaranteed by the Related/Oxford Guarantor subject to and in
accordance with the Related/Oxford Guaranty and neither Developer nor the Building C JV nor the Fund Member may use or permit the use of the Coach
Contingency or any portion of the Coach Unit Loan to pay any such costs or to “cover” such amount.
(b) As used herein, the term “Base Cost” means (i) the sum of (A) the budgeted Coach Total Development Costs shown on the
Budget, together with the Coach Contingency shown in the Budget, and (B) any increases in the Coach Total Development Costs as described in Section
10.01(b), less (ii) any decreases in the Coach Total Development Costs as described in Section 10.01(c).
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