Coach 2013 Annual Report Download - page 746

ARTICLE 11.
INTENTIONALLY OMITTED
ARTICLE 12.
TITLE COSTS; LITIGATION COSTS
Section 12.01 Title Costs. (a) The costs incurred by Developer, the Fund Member or the Building C JV to remove, by payment, bonding or
otherwise, any Encumbrance which is not a Permitted Encumbrance shall be a Project Cost allocable among the Coach Unit and the Fund Member Units in
accordance with the Cost Allocation Methodology and the applicable provisions of this Agreement (and shall be subject to the Coach Costs Cap) based on the
nature of the underlying claim; provided, that (i) if such Encumbrance results from any affirmative action or wrongful omission (i.e., where there is an
obligation to affirmatively act) of Developer, the Fund Member or any of their respective Affiliates, then all such costs shall be borne in their entirety by
Developer or the Fund Member (through the Building C JV), as applicable, and (ii) if such Encumbrance results from any affirmative action or wrongful
omission (i.e., where there is an obligation to affirmatively act) of the Coach Member or any of its Affiliates, then all such costs shall be borne in their entirety
by the Coach Member (and shall not be subject to the Coach Costs Cap). The foregoing allocation of costs shall not limit the obligations of the Fund Member
under the Operating Agreement to cause any Encumbrance which is not a Permitted Encumbrance to be removed from the Coach Unit in connection with the
Closing.
(b) The costs of satisfying any indemnity delivered in any affidavit given to the Title Company that is customarily given by a seller
to induce the Title Company to issue a commitment to issue an owner’s policy of title insurance insuring the fee simple title to the buyer free of Encumbrances
other than the Permitted Encumbrances (should the Coach Member elect to obtain title insurance), or any obligation assumed in any such affidavit, shall be a
Project Cost allocable among the Coach Unit and the Fund Member Units in accordance with the Cost Allocation Methodology and the applicable provisions
of this Agreement (and shall be subject to the Coach Costs Cap) based on the nature of the underlying claim (unless caused by Developer, the Fund Member or
any of their respective Affiliates, and then shall be borne in its entirety by Developer or the Fund Member, as applicable). The foregoing allocation of costs
shall not limit the obligations of the Fund Member under the Operating Agreement to deliver any such indemnity or affidavit in connection with the Closing.
(c) The costs incurred by Developer, the Fund Member or the Building C JV to satisfy any Material Litigation shall be a Project Cost
allocable among the Coach Unit and the Fund Member Units in accordance with the Cost Allocation Methodology and the applicable provisions of this
Agreement (and shall be subject to the Coach Costs Cap) based on the nature of the underlying claim; provided, that (i) if such litigation results from any
affirmative action or wrongful omission (i.e., where there is an obligation to affirmatively act) of Developer, the Fund Member or any of their respective
Affiliates, then all such costs shall be borne in their entirety by Developer or the Fund Member (through the Building C JV), as applicable, and (ii) if such
litigation results from any affirmative action or wrongful omission (i.e., where there is an obligation to affirmatively act) of the Coach Member or any of its
Affiliates, then all such costs shall be borne in their entirety by the Coach Member (and shall not be subject to the Coach Costs Cap). The foregoing allocation
of costs shall not limit the obligations of the Fund Member under the Operating Agreement to cause any Material Litigation to be satisfied in connection with the
Closing.
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