Common use of Non-Development Cost Overruns Clause in Contracts

Non-Development Cost Overruns. Except in the instance of a Hard Cost Overrun Loan under Sections 8.04(c) and 8.04(d), and subject further to Catalyst Member's right to call capital as provided in Section 6.05(c) other than for Hard Cost Overruns and the BR Member's right to contribute capital pursuant to Section 6.0S(d), in the event the Borrower is reasonably expected to incur a Non-Development Cost Overrun or is unable to pay its cash obligations as and when they become due, and thus has or is expected to have an actual cash flow deficit, and such funds cannot be obtained pursuant to Section 8.03 above or pursuant to the TIC Agreement, the Catalyst Member shall determine the amount of required funds, shall notify the Management Committee of same and shall recommend that the Management Committee make a capital call for such funds pursuant to this Section 8.04(a). Upon the receipt of the recommendation of the Catalyst Member, the Management Committee shall evaluate such recommendation in good faith and shall determine whether such capital call is reasonably required under the circumstances. In the event that the Management Committee elects to make such capital call, it shall so notify the Members, and the Catalyst Member and the BR Member shall have thirty (30) days to make Capital Contributions in the amounts of 15% and 85%, respectively, of the necessary funds (each, an "Additional Capital Contribution"). Notwithstanding the foregoing: (i) the Catalyst Member must on its own account pay over to the Company any Non-Development Cost Overrun caused by, or any additional capital required by the Company or Borrower because of, a Default Action of the Catalyst Member (a "Catalyst Cost Overrun Loan") (to be paid back as provided in Section 9.0l(f) below, but without any interest or return thereon); and (ii) the BR Member must on its own account pay over to the Company any Non-Development Cost Overrun caused by, or any additional capital required by the Company or Borrower because of, a Default Action of the BR Member (the "BR Cost Overrun Loan") (to be paid back as provided in Section 9.0l(f) below, but without any interest or return thereon). In either such case, it is the intent of the Members that any such Additional Capital Contributions will, in turn, be contributed to the Borrower and that the Borrower will then return such capital contributions to the Company on a priority basis, in accordance with the provisions of the TIC Agreement.

Non-Development Cost Overruns. Except in the instance of a Hard Cost Overrun Loan under Sections 8.04(c) and 8.04(d), and subject further to Catalyst Member's right to call capital as provided separately addressed in Section 6.05(c8.04(b) other than for Hard Cost Overruns and the BR Member's right to contribute capital pursuant to Section 6.0S(d)Soft Cost Overruns, in the event the Borrower is reasonably expected to incur a Non-Development Cost Overrun not solely caused by the Catalyst Member, the BR Member or is unable to pay its cash obligations as their respective Affiliates and when they become due, and thus has or is expected to have result in the Borrower having an actual imminent cash flow deficit, and such funds canare not be obtained pursuant to Section 8.03 above or pursuant to the TIC Agreement, the Catalyst Member as Manager shall in the first instance determine the amount of required fundsfunds (but if it fails to timely do so, the BR Member as Manager may do so), shall notify the Management Committee of same and shall recommend that the Management Committee make a capital call for such funds pursuant to this Section 8.04(a). Upon the receipt of the recommendation of the Catalyst Membersuch recommendation, the Management Committee shall evaluate such recommendation it in good faith and shall determine whether such capital call is reasonably required under the circumstances. In the event that the Management Committee elects to make such capital call, it shall so notify cause the MembersCompany to cause the Borrower to issue a Cash Call Notice (as that term is defined in the TIC Agreement) to the Co-Tenants, and they shall each have fourteen (14) days to fund their respective shares of the required capital; namely, the B▇▇▇▇ Co-Tenants shall be obligated to fund ten percent (10%) as Additional Cash Contributions pursuant to the TIC Agreement, and the Catalyst Member and Company shall be required to fund the other ninety percent (90%) (all of which shall be funded by the BR Member as an Additional Capital Contribution pursuant to this Agreement). Notwithstanding the foregoing, if the B▇▇▇▇ Co-Tenants do not timely fund their 10% share, then the Company shall have thirty be required to fund the full one hundred percent (30100%) days to make Capital Contributions in the amounts of 15% and 85%, respectively, of the necessary funds amount required pursuant to the Cash Call Notice (each, of which 90% shall be funded by the BR Member and 10% shall be funded by the Catalyst Member as an "Additional Capital Contribution"Contribution pursuant to this Agreement). Notwithstanding the foregoing: (i) the Catalyst Member must on its own account pay over to solely fund into the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company or Borrower because of, a Default Action of the Catalyst Member or its Affiliates (a "“Catalyst Cost Overrun Loan"Section 8.04(a) Advance”) (to be paid back as provided in Section 9.0l(f9.01(f) below, but without any interest or return thereon); and (ii) the BR Member must on its own account solely pay over to the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company or Borrower because of, a Default Action of the BR Member or its Affiliates (a “BR Section 8.04(a) Advance” and, generically with the "BR Cost Overrun Loan"Catalyst Section 8.04(a) Advance, the “Section 8.04(a) Advance”) (to be paid back as provided in Section 9.0l(f9.01(f) below, but without any interest or return thereon). In either such case, it It is the intent of the Members that any such Additional Capital Contributions fundings by them under this Section 8.04(a) will, in turn, be contributed to the Borrower as Additional Cash Contributions (as that term is defined and that used in the TIC Agreement) and then returned by the Borrower will then return such capital contributions back to the Company on a priority basis, in accordance with the provisions of the TIC Agreement.

Non-Development Cost Overruns. Except in the instance of a Hard Cost Overrun Loan under Sections 8.04(c) and 8.04(d), and subject further to Catalyst Member's right to call capital as provided separately addressed in Section 6.05(c8.04(b) other than for Hard Cost Overruns and the BR Member's right to contribute capital pursuant to Section 6.0S(d)Soft Cost Overruns, in the event the Borrower is reasonably expected to incur a Non-Development Cost Overrun not solely caused by the Catalyst Member, the BR Member or is unable to pay its cash obligations as their respective Affiliates and when they become due, and thus has or is expected to have result in the Borrower having an actual imminent cash flow deficit, and such funds canare not be obtained pursuant to Section 8.03 above or pursuant to the TIC Agreement, the Catalyst Member as Manager shall in the first instance determine the amount of required fundsfunds (but if it fails to timely do so, the BR Member as Manager may do so), shall notify the Management Committee of same and shall recommend that the Management Committee make a capital call for such funds pursuant to this Section 8.04(a). Upon the receipt of the recommendation of the Catalyst Membersuch recommendation, the Management Committee shall evaluate such recommendation it in good faith and shall determine whether such capital call is reasonably required under the circumstances. In the event that the Management Committee elects to make such capital call, it shall so notify cause the MembersCompany to cause the Borrower to issue a Cash Call Notice (as that term is defined in the TIC Agreement) to the Co-Tenants, and they shall each have fourteen (14) days to fund their respective shares of the required capital; namely, the B▇▇▇▇ Co-Tenants shall be obligated to fund ten percent (10%) as Additional Cash Contributions pursuant to the TIC Agreement, and the Catalyst Member and Company shall be required to fund the other ninety percent (90%) (all of which shall be funded by the BR Member as an Additional Capital Contribution pursuant to this Agreement). Notwithstanding the foregoing, if the B▇▇▇▇ Co-Tenants do not timely fund their 10% share, then the Company shall have thirty be required to fund the full one hundred percent (30100%) days of the amount required pursuant to make the Cash Call Notice (of which 90% shall be funded by the BR Member and 10% shall be funded by the Catalyst Member as an Additional Capital Contribution pursuant to this Agreement). These fundings will, in turn, be contributed to the Borrower as Additional Cash Contributions (as that term is defined and used in the amounts of 15% TIC Agreement) and 85%then returned by the Borrower back to the Company on a fourth priority basis, respectively, in accordance with the provisions of the necessary funds (each, an "Additional Capital Contribution")TIC Agreement. Notwithstanding the foregoing: (i) the Catalyst Member must on its own account pay over to solely fund into the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company or Borrower because of, a Default Action of the Catalyst Member or its Affiliates (a "“Catalyst Cost Overrun Loan"Section 8.04(a) Advance”) (to be paid back as provided in Section 9.0l(f9.01(f) below, but without any interest or return thereon); and (ii) the BR Member must on its own account solely pay over to the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company or Borrower because of, a Default Action of the BR Member or its Affiliates (a “BR Section 8.04(a) Advance” and, generically with the "BR Cost Overrun Loan"Catalyst Section 8.04(a) Advance, the “Section 8.04(a) Advance”) (to be paid back as provided in Section 9.0l(f9.01(f) below, but without any interest or return thereon). In either such case, it is the intent of the Members that any such Additional Capital Contributions will, in turn, be contributed to the Borrower and that the Borrower will then return such capital contributions to the Company on a priority basis, in accordance with the provisions of the TIC Agreement.