Coach 2013 Annual Report Download - page 739

(iii) any costs resulting from (A) any “Default” or “Event of Default” (as such terms are defined in the Loan Documents),
except if caused by the Coach Member or its Affiliates, or Coach’s Architect or Coach’s Consultants, or (B) the failure by any Person (other than the
Coach Member or Coach’s Architect or Coach’s Consultants) to comply with any condition to funding of a Coach Lender Advance or a Third Party
Lender Advance, as applicable, under the Loan Documents, this Agreement or the Operating Agreement; it being understood, however, that if the
matter comprising the Default or the Event of Default or non-compliance would otherwise give rise to an increase in the Coach Total Development
Costs if such matter were not a Default or an Event of Default ( e.g., a failure to complete the Project by a certain date due to a Force Majeure event),
then, the fact that a Default or an Event of Default or any such non-compliance has occurred shall not preclude an increase in the Coach Total
Development Costs which would otherwise be required hereunder; or
(iv) any extension fee or administrative or other similar fee payable to the Third Party Lender during any extension of the
Construction Loan (which the Coach Member shall not be obligated to pay, in whole or in part), unless such extension is required solely as a result
of a Coach Change Delay extending beyond the Change Order Grace Period or a Coach Work Delay or any failure of the Coach Member to comply
with its obligations under this Agreement or the Operating Agreement.
(e) Any disputes between Developer and the Coach Member as to the Coach Total Development Costs shall be resolved by Arbitration
as provided in Article 14.
(f) Developer agrees to use Best Efforts to minimize any increases in the Coach Total Development Costs and, in connection
therewith, to seek recovery from insurers, professional consultants, contractors and other third parties when appropriate and cost effective to do so.
(g) The parties acknowledge and agree that all Project Costs of any type or nature which are not properly included in the Coach Total
Development Costs or otherwise payable by the Coach Member pursuant to this Agreement or the Operating Agreement, and, except as expressly provided
herein, any Project Costs that are properly included in Coach Total Development Costs but that would cause the Coach Total Development Costs to exceed the
Coach Costs Cap, are the responsibility of the Fund Member pursuant to the terms of the Operating Agreement and are guaranteed by the Related/Oxford
Guarantor subject to and in accordance with the Related/Oxford Guaranty, and n either the Coach Contingency nor any portion of the Coach Unit Loan may be
used to pay any such costs. Without limiting the foregoing, the parties further acknowledge and agree that (i) the Coach Total Development Costs shall not
include any amounts payable in respect of or attributable to the Third Party Loan or, except to the extent included in Coach Fixed Land Cost or otherwise
payable by the Coach Member pursuant to the express terms of this Agreement or of the Operating Agreement, (A) any costs associated with acquiring fee title
of the Coach Unit from the MTA in order to effectuate the Closing, including, without limitation, any deposits payable to the MTA and, if applicable, any
contributions required to be made to the LIRR Work Fund, (B) any rental or other amounts that may be payable under the Building C Lease (including, if
applicable, any rental in respect of Estimated ERY Roof Costs or the LIRR Work Cost Allocable Share or the Guaranteed Default Payments) , or (C) any costs
of constructing the Podium, and (ii) payment of all such amounts and costs in full are the responsibility of the Fund Member pursuant to the terms of the
Operating Agreement and are guaranteed by the Related/Oxford Guarantor subject to and in accordance with the Related/Oxford Guaranty, and n either the
Coach Contingency nor any portion of the Coach Unit Loan may be used to pay any such amounts and costs. Without limiting the foregoing, payment of all
of the foregoing costs and amounts (whether by the Fund Member or the Related/Oxford Guarantor) shall not be shall not be conditioned upon or contingent
upon the funding of any Third Party Lender Advance.
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