Common use of In Balance Requirement; Cost Overrun and Completion Guaranty Clause in Contracts

In Balance Requirement; Cost Overrun and Completion Guaranty. (i) Notwithstanding anything to the contrary contained in this Agreement, HSRE shall not be required to fund a Mandatory Capital Contribution at any time when a Development Project is not “In Balance” (as defined under the Development Agreement) on the Due Date of such Mandatory Capital Contribution as a result of Excess Project Costs for which Developer is responsible to fund pursuant to the Development Agreement. The Developer and/or the Campus Crest Guarantor shall be jointly and severally liable to fund all Cost Overruns (as determined pursuant to and as provided in the Development Agreement and the Completion and Cost Overrun Guaranty Agreement). Any amounts funded by the Developer and/or the Campus Crest Guarantor for Cost Overruns or other amounts under the Development Agreement and other amounts required to be funded by the Developer under the Development Agreement or the Completion and Cost Overrun Guaranty, as the case may be, shall not be reimbursed by the Company to the payor except as provided in the Development Agreement and/or Completion and Cost Overrun Guaranty and shall not be deemed loans to the Company or Capital Contributions for any purpose hereunder (or under the Related Party Agreements). (ii) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Developer and/or Campus Crest Guarantor fund any Cost Overruns and the Reimbursement Conditions (as defined below) with respect to the Reimbursement Amounts are satisfied, then Developer and/or Campus Crest Guarantor, as applicable, shall be entitled to a reimbursement from the Company equal to the sum of the Project Reimbursement Balances (as defined in a Development Agreement) of all Projects in the applicable Pool (the “Pooled Reimbursement Amount”). For the purposes hereof, the Reimbursement Conditions shall be deemed to be satisfied upon compliance with or satisfaction of the conditions of subsections (1) and (3) of the definition of “Reimbursement Conditions” under a Development Agreement. The payment of the Pooled Reimbursement Amount shall be made to the Developer and/or Campus Crest Guarantor, as applicable, as set forth in Section 3.4(b)(iii) and Section 4.1(a)(iii). (iii) Any amounts funded by (A) a Construction Lender (as defined in the Development Agreement), (B) a lender refinancing a Construction Loan or (C) a General Contractor (as defined in a Development Agreement) that would otherwise be used to reimburse any Final Savings (as defined in a Development Agreement) achieved with respect to a Development Project shall be held in a separate account (the “Excess Savings Account”) to be maintained by the applicable Property Owning Subsidiary which owns such Development Project until the completion of the last Development Project in the applicable Pool. To the extent that any such amounts remain in the Excess Savings Account upon completion of all Development Projects in such Pool and Developer is not obligated to fund any remaining Cost Overruns (including, without limitation, Operating Deficit Overruns (as defined in a Development Agreement)), such amounts shall be distributed (x) first, to HSRE, in repayment of any Member Loans made by HSRE to Campus Crest to fund Cost Overruns not otherwise funded by Campus Crest, (y) second, to Developer and/or Campus Crest Guarantor, as applicable, to the extent of any Pooled Reimbursement Amount that has not been previously reimbursed, whether pursuant to Section 3.4(b)(ii) above or otherwise, and (z), thereafter, fifty percent (50%) to HSRE and fifty percent (50%) to Campus Crest.

In Balance Requirement; Cost Overrun and Completion Guaranty. (i) Notwithstanding anything to the contrary contained in this Agreement, HSRE shall not be required to fund a Mandatory Capital Contribution at any time when a Development Project is not “In Balance” (as defined under the Development Agreement) on the Due Date of such Mandatory Capital Contribution as a result of Excess Project Costs for which Developer is responsible to fund pursuant to the Development Agreement. The Developer and/or the Campus Crest Guarantor shall be jointly and severally liable to fund all Cost Overruns (as determined pursuant to and as provided in the Development Agreement and the Completion and Cost Overrun Guaranty Agreement). Any amounts funded by the Developer and/or the Campus Crest Guarantor for Cost Overruns or other amounts under the Development Agreement and other amounts required to be funded by the Developer under the Development Agreement or the Completion and Cost Overrun Guaranty, as the case may be, shall not be reimbursed by the Company to the payor except as provided in the Development Agreement and/or Completion and Cost Overrun Guaranty and shall not be deemed loans to the Company or Capital Contributions for any purpose hereunder (or under the Related Party Agreements). (ii) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Developer and/or Campus Crest Guarantor fund any Cost Overruns and the Reimbursement Conditions (as defined below) with respect to the Reimbursement Amounts are satisfied, then Developer and/or Campus Crest Guarantor, as applicable, shall be entitled to a reimbursement from the Company equal to the sum of the Project Reimbursement Balances (as defined in a Development Agreement) of all Projects in the applicable Pool (the “Pooled Reimbursement Amount”). For the purposes hereof, the Reimbursement Conditions shall be deemed to be satisfied upon compliance with or satisfaction of the conditions of subsections (1) and (3) of the definition of “Reimbursement Conditions” under a Development Agreement. The payment of the Pooled Reimbursement Amount shall be made to the Developer and/or Campus Crest Guarantor, as applicable, as set forth in Section 3.4(b)(iii) and Section 4.1(a)(iii). (iii) Any amounts funded by (A) a Construction Lender (as defined in the Development Agreement), (B) a lender refinancing a Construction Loan or (C) a General Contractor (as defined in a Development Agreement) that would otherwise be used to reimburse any Final Savings (as defined in a Development Agreement) achieved with respect to a Development Project shall be held in a separate account (the “Excess Savings Account”) to be maintained by the applicable Property Owning Subsidiary which owns such Development Project until the completion of the last Development Project in the applicable Pool. To the extent that any such amounts remain in the Excess Savings Account upon completion of all Development Projects in such Pool and Developer is not obligated to fund any remaining Cost Overruns (including, without limitation, Operating Deficit Overruns (as defined in a Development Agreement)), such amounts shall be distributed (x) first, to HSRE, in repayment of any Member Loans made by HSRE to Campus Crest to fund Cost Overruns not otherwise funded by Campus Crest, (y) second, to Developer and/or Campus Crest Guarantor, as applicable, to the extent of any Pooled Reimbursement Amount that has not been previously reimbursed, whether pursuant to Section 3.4(b)(ii) above or otherwise, and (z), ) thereafter, fifty percent (50%) to HSRE and fifty percent (50%) to Campus Crest.

In Balance Requirement; Cost Overrun and Completion Guaranty. (i) Notwithstanding anything to the contrary contained in this Agreement, HSRE shall not be required to fund a Mandatory Capital Contribution at any time when a Development Project is not “In Balance” (as defined under the Development Agreement) on the Due Date of such Mandatory Capital Contribution as a result of Excess Project Costs for which Developer is responsible to fund pursuant to the Development Agreement. The Developer and/or the Campus Crest Guarantor shall be jointly and severally liable to fund all Cost Overruns (as determined pursuant to and as provided in the Development Agreement and the Completion and Cost Overrun Guaranty Agreement). Any amounts funded by the Developer and/or the Campus Crest Guarantor for Cost Overruns or other amounts under the Development Agreement and other amounts required to be funded by the Developer under the Development Agreement or the Completion and Cost Overrun Guaranty, as the case may be, shall not be reimbursed by the Company to the payor except as provided in the Development Agreement and/or Completion and Cost Overrun Guaranty and shall not be deemed loans to the Company or Capital Contributions for any purpose hereunder (or under the Related Party Agreements). (ii) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Developer and/or Campus Crest Guarantor fund any Cost Overruns and the Reimbursement Conditions (as defined below) with respect to the Reimbursement Amounts are satisfied, then Developer and/or Campus Crest Guarantor, as applicable, shall be entitled to a reimbursement from the Company equal to the sum of the Project Reimbursement Balances (as defined in a Development Agreement) of all Projects in the applicable Pool (the “Pooled Reimbursement Amount”). For the purposes hereof, the Reimbursement Conditions shall be deemed to be satisfied upon compliance with or satisfaction of the conditions of subsections subsection (1) and (3) of the definition of “Reimbursement Conditions” Conditions under a the Development Agreement. The payment of the Pooled Reimbursement Amount shall be made paid to the Developer and/or Campus Crest Guarantor, as applicable, as set forth in Section 3.4(b)(iii) and Section 4.1(a)(iii4.1(a)(ii). (iii) Any amounts funded by (A) a Construction Lender (as defined in the Development Agreement), (B) a lender refinancing a Construction Loan or (C) a General Contractor (as defined in a Development Agreement) that would otherwise be used to reimburse any Final Savings (as defined in a Development Agreement) achieved with respect to a Development Project shall be held in a separate account (the “Excess Savings Account”) to be maintained by the applicable Property Owning Subsidiary which owns such Development Project until the completion of the last Development Project in the applicable Pool. To the extent that any such amounts remain in the Excess Savings Account upon completion of all Development Projects in such Pool and Developer is not obligated to fund any remaining Cost Overruns (including, without limitation, Operating Deficit Overruns (as defined in a Development Agreement)), such amounts shall be distributed (x) first, to HSRE, in repayment of any Member Loans made by HSRE to Campus Crest to fund Cost Overruns not otherwise funded by Campus Crest, (y) second, to Developer and/or Campus Crest Guarantor, as applicable, to the extent of any Pooled Reimbursement Amount that has not been previously reimbursed, whether pursuant to Section 3.4(b)(ii) above or otherwise, and (z), thereafter, fifty percent (50%) to HSRE and fifty percent (50%) to Campus Crest.

In Balance Requirement; Cost Overrun and Completion Guaranty. (i) Notwithstanding anything to the contrary contained in this Agreement, HSRE shall not be required to fund a Mandatory Capital Contribution at any time when a Development Project is not “In Balance” (as defined under the Development Agreement) on the Due Date of such Mandatory Capital Contribution as a result of Excess Project Costs for which Developer is responsible to fund pursuant to the Development Agreement. The Developer and/or the Campus Crest Guarantor Guarantors shall be jointly and severally liable to fund all Cost Overruns (as determined pursuant to and as provided in the Development Agreement and the Completion and Cost Overrun Guaranty Agreement). Any amounts funded by the Developer and/or the Campus Crest Guarantor Guarantors for Cost Overruns or other amounts under the Development Agreement and other amounts required to be funded by the Developer under the Development Agreement or the Completion and Cost Overrun Guaranty, as the case may be, shall not be reimbursed by the Company to the payor except as provided in the Development Agreement and/or Completion and Cost Overrun Guaranty and shall not be deemed loans to the Company or Capital Contributions for any purpose hereunder (or under the Related Party Agreements). (ii) Notwithstanding anything to the contrary contained in this Agreement, in the event that the Developer and/or Campus Crest Guarantor Guarantors fund any Cost Overruns and the Reimbursement Conditions (as defined below) with respect to the Reimbursement Amounts are satisfied, then Developer and/or Campus Crest GuarantorGuarantors, as applicable, shall be entitled to a reimbursement from the Company equal to the sum of the Project Reimbursement Balances (as defined in a Development Agreement) of all Projects in the applicable Pool (the “Pooled Reimbursement Amount”). For the purposes hereof, the Reimbursement Conditions shall be deemed to be satisfied upon compliance with or satisfaction of the conditions of subsections subsection (1) and (3) of the definition of “Reimbursement Conditions” Conditions under a the Development Agreement. The payment of the Pooled Reimbursement Amount shall be made paid to the Developer and/or Campus Crest GuarantorGuarantors, as applicable, as set forth in Section 3.4(b)(iii) and Section 4.1(a)(iii4.1(a)(ii). (iii) Any amounts funded by (A) a Construction Lender (as defined in the Development Agreement), (B) a lender refinancing a Construction Loan or (C) a General Contractor (as defined in a Development Agreement) that would otherwise be used to reimburse any Final Savings (as defined in a Development Agreement) achieved with respect to a Development Project shall be held in a separate account (the “Excess Savings Account”) to be maintained by the applicable Property Owning Subsidiary which owns such Development Project until the completion of the last Development Project in the applicable Pool. To the extent that any such amounts remain in the Excess Savings Account upon completion of all Development Projects in such Pool and Developer is not obligated to fund any remaining Cost Overruns (including, without limitation, Operating Deficit Overruns (as defined in a Development Agreement)), such amounts shall be distributed (x) first, to HSRE, in repayment of any Member Loans made by HSRE to Campus Crest to fund Cost Overruns not otherwise funded by Campus Crest, (y) second, to Developer and/or Campus Crest Guarantor, as applicable, to the extent of any Pooled Reimbursement Amount that has not been previously reimbursed, whether pursuant to Section 3.4(b)(ii) above or otherwise, and (z), thereafter, fifty percent (50%) to HSRE and fifty percent (50%) to Campus Crest.