TAKE ALL STEPS COMMERCIALLY REASONABLE
TO MITIGATE THE EFFECTS OF SUCH FORCE MAJEURE EVENT; PROVIDED, HOWEVER, THAT
(X) IN NO EVENT SHALL ALL EXTENSIONS PURSUANT TO THIS SECTION 3.19(B) BE MORE
THAN 180 DAYS IN THE AGGREGATE (THE PERIOD OF SUCH EXTENSIONS BEING HEREINAFTER
COLLECTIVELY REFERRED TO AS THE "FORCE MAJEURE EXTENSION PERIOD") AND (Y) ANY
SUCH EXTENSION SHALL IN ALL EVENTS END IF, AND AS OF THE DATE THAT, BORROWER IS
NOT IN COMPLIANCE WITH THE IMMEDIATELY SUCCEEDING SENTENCE.
IF A FORCE MAJEURE
EVENT SHALL HAVE OCCURRED, BORROWER SHALL (1) PERIODICALLY (AT LEAST ONCE EVERY
TWO WEEKS) ADVISE AGENT OF THE STATUS OF SUCH FORCE MAJEURE EVENT AND ITS EFFECT
ON COMPLETION OF THE PROJECT AND (2) TAKE ALL STEPS, AND CAUSE THE GENERAL
CONTRACTOR TO TAKE ALL STEPS, COMMERCIALLY REASONABLE TO MITIGATE THE EFFECTS OF
SUCH FORCE MAJEURE EVENT.
IF THE MATURITY DATE IS EXTENDED IN ACCORDANCE WITH
THIS SECTION 3.19(B), ALL REFERENCES TO THE ORIGINAL MATURITY DATE, THE FIRST
EXTENDED MATURITY DATE, OR THE SECOND EXTENDED MATURITY DATE SHALL BE
INTERPRETED SO THAT SUCH REFERENCES ARE TO SUCH DATE, AS EXTENDED BY THE
APPLICABLE FORCE MAJEURE EXTENSION PERIOD.
(C)
BORROWER SHALL PAY AT THE TIME OF AND AS A CONDITION TO THE
EXTENSION OF THE TERM OF THE BUILDING LOAN DESCRIBED IN SECTIONS 3.19(A) AND
(B) ABOVE, (I) ALL REASONABLE, THIRD-PARTY OUT-OF-POCKET FEES AND EXPENSES OF
AGENT IN PREPARING, EXECUTING, DELIVERING, OR RECORDING ANY DOCUMENTS OR
INSTRUMENTS RELATED TO SUCH
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EXTENSION, AND (II) ALL REASONABLE, THIRD-PARTY OUT-OF-POCKET FEES AND EXPENSES
OF AGENT IN CONNECTION WITH ANY TITLE COMPANY SEARCHES AND INSURANCE WHICH AGENT
MAY REASONABLY THEN REQUIRE.
(D)
WITHOUT AGENT'S PRIOR REASONABLE CONSENT, BORROWER SHALL NOT
CONSENT TO AN EXTENSION FOR AN "EXCUSABLE DELAY" UNDER SECTION 11.7 OF THE
GUARANTEED MAXIMUM PRICE CONTRACT UNLESS (I) SUCH "EXCUSABLE DELAY" IS A FORCE
MAJEURE EVENT AND (II) THE CONDITIONS SET FORTH IN CLAUSES (I)-(VIII) OF
SECTION 3.19(B) HEREOF HAVE BEEN SATISFIED.
SECTION 3.20
Reallocations.
Agent and Borrower acknowledge and confirm
that NYTC Member has the right to dispute any Draw Request (including if made
after the NYTC Units Redemption) and the allocation of costs to the Units shown
in any Draw Request, as and to the extent set forth in the Operating Agreement.
(Notwithstanding the foregoing or the further provisions of this Section 3.20,
no such dispute shall abrogate, nullify or modify any Draw Request or any
portion thereof.)
Agent and Borrower further acknowledge that, following the
resolution by agreement between the Members of any such dispute (which agreement
or determination Borrower, the Members, and Agent shall accept as final and
binding), Borrower shall reallocate Building Loan Costs and Project Loan Costs
between the FC Units and the NYTC Units as necessary to reflect the resolution
or arbitration of the issues in dispute, and the next Draw Request shall reflect
such re-allocations.
More particularly, Borrower and Agent agree that if any
costs were (or are) initially allocated to the FC Units or the NYTC Units (such
Units,