Coach 2013 Annual Report Download - page 156

(4) the Option Agreement, executed by the Coach Member or the Coach Designee, as applicable, as fee owner of the
Coach Unit;
(5) the Memorandum of Option Agreement, executed by the Coach Member or the Coach Designee, as applicable;
(6) the Right of First Negotiation Agreement, executed by the Coach Member or the Coach Designee, as applicable,
as fee owner of the Coach Unit;
(7) the Punch List Escrow Agreement; and
(8) any other instruments, statements or documents to be executed or delivered by the Coach Member at Closing
pursuant to the provisions of this Agreement or the Development Agreement or required in order to release the Coach Unit and sever the Mortgage
Loan and Mezzanine Loan under the applicable Loan Documents.
(i) Title Defects; Material Litigation. The Coach Member may give the Fund Member notice of any Title Defect at least ten (10) days
prior to the Closing Date (except that the Coach Member may give notice of any Title Defect of which the Coach Member first receives notice during such ten
(10) day period at any time on or prior to the Closing Date), in which event the Fund Member shall have such additional period of time as it may require (but
not more than thirty (30) days in the aggregate) in order to cure and remove the Title Defect(s) specified in the Coach Member’s notice(s) and the Closing shall
be adjourned for such period of time up to the Outside Closing Date. Subject to the provisions of this Section 3.8(i), (A) the Fund Member shall cause the
Company to remove or cause Legacy Tenant to remove, by payment, bonding or otherwise, any Title Defect, and (B) the Coach Member shall cooperate
reasonably with the Fund Member as required in order to remove such Title Defect. The costs of removing any Title Defect shall be a Project Cost allocable in
accordance with the Cost Allocation Methodology and the applicable provisions of the Development Agreement (and shall be subject to the Coach Costs Cap,
except if such Title Defect arose as provided in clause (y) below) and based on the nature of the underlying claim, provided, that (x) if such Title Defect
results from an act or omission (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 the Fund Member and (y) if such Title Defect results from an act or omission (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 (in addition to the
Coach Total Development Costs). The foregoing allocation of costs shall not limit the obligations of the Fund Member to cause any Title Defect to be removed
from the Coach Unit, subject to the payment by the Coach Member of such costs allocated to the Coach Member at Closing. Subject to the provisions of this
Section 3.8(i), (1) the Fund Member shall cause the Company to satisfy or cause Legacy Tenant to satisfy any Material Litigation, and (2) the Coach Member
shall cooperate reasonably with the Fund Member as required in order to satisfy such Material Litigation. The costs of satisfying any such Material Litigation
shall be a Project Cost allocable in accordance with the Cost Allocation Methodology and the applicable provisions of the Development Agreement (and shall be
subject to the Coach Costs Cap, except if such Material Litigation arose as provided in clause (ii) below) and based on the nature of the underlying claim,
provided, that (i) if such Material Litigation results from an act or omission (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 the Fund Member and (ii) if such Material Litigation results from an
act or omission (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 (in addition to the Coach Total Development Costs). The foregoing allocation of costs shall not limit the obligations of the Fund
Member to cause any Material Litigation to be satisfied in connection with the Closing, subject to the payment by the Coach Member of such costs allocated to
the Coach Member at Closing.
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