exv10w5



 


Exhibit 10.5




CONSTRUCTION LOAN AND SECURITY AGREEMENT




AMONG



CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP, a

Delaware limited partnership, CAMPUS CREST AT FORT WAYNE, LLC, a

Delaware limited liability company, CAMPUS CREST AT FORT COLLINS,

LLC, a Delaware limited liability company, CAMPUS CREST AT

CLARKSVILLE, LLC, a Delaware limited liability company, and CAMPUS

CREST AT AMES, LLC, a Delaware limited liability company




collectively, individually, jointly and severally, as Borrower






AND






THE FINANCIAL INSTITUTIONS PARTY HERETO



AND THEIR ASSIGNEES,

as Lenders







AND




THE PRIVATEBANK AND TRUST COMPANY,

an Illinois state chartered bank,

as Administrative Agent on behalf of Lenders



BANK OF THE WEST,

as Co-Lead Arranger







AND





THE PRIVATEBANK AND TRUST COMPANY

as Co-Lead Arranger





 









 


 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 1. RECITALS	 	 	1	 
	 
	 	 	 	 	 	 
	SECTION 2. DEFINITIONS	 	 	2	 
	 
	 	 	 	 	 	 
	SECTION 3. LOAN TERMS	 	 	30	 
	 
	 	 	 	 	 	 
	3.1

	 	Commitments, Loans and Notes
	 	 	30	 
	3.2

	 	Interest Rates, Late Charges
	 	 	32	 
	3.3

	 	Payments
	 	 	35	 
	3.4

	 	Prepayments
	 	 	35	 
	3.5

	 	Extension of Maturity Date
	 	 	36	 
	3.6

	 	Payments, Fees and Other General Provisions
	 	 	38	 
	3.7

	 	Defaulting Lenders
	 	 	40	 
	3.8

	 	Taxes
	 	 	42	 
	3.9

	 	Yield Protection, etc.
	 	 	43	 
	3.10

	 	Regarding Partial Releases
	 	 	47	 
	 
	 	 	 	 	 	 
	SECTION 4. CONDITIONS TO LOAN OPENING DATE
	 
	 	 	 	 	49	 
	4.1

	 	The Loan Documents
	 	 	49	 
	4.2

	 	Survey
	 	 	49	 
	4.3

	 	Insurance
	 	 	50	 
	4.4

	 	Title Policy
	 	 	50	 
	4.5

	 	Title Documents
	 	 	51	 
	4.6

	 	Recorded Documents
	 	 	51	 
	4.7

	 	Searches
	 	 	51	 
	4.8

	 	Consents
	 	 	51	 
	4.9

	 	Contracts
	 	 	51	 
	4.10

	 	Opinions
	 	 	51	 
	4.11

	 	Geotechnical Reports
	 	 	51	 
	4.12

	 	Flood Hazards
	 	 	51	 
	4.13

	 	Organizational Documents
	 	 	51	 
	4.14

	 	Environmental Report
	 	 	52	 
	4.15

	 	Commitment
	 	 	52	 
	4.16

	 	No Material Adverse Occurrences
	 	 	52	 
	4.17

	 	Appraisal
	 	 	52	 
	4.18

	 	Construction Schedule
	 	 	52	 
	4.19

	 	Construction Escrow Agreement
	 	 	52	 
	4.20

	 	Material Subcontracts
	 	 	52	 
	4.21

	 	Utilities
	 	 	52	 
	4.22

	 	Property Management Contract
	 	 	52	 
	4.23

	 	Form Leases
	 	 	53	 
	4.24

	 	Fort Collins Ground Lease
	 	 	53	 
	4.25

	 	Fort Collins Ground Lease Estoppel
	 	 	53	 
	 
	 	 	 	 	 	 
	SECTION 5. DISBURSEMENT OF THE LOAN	 	 	53	 
	 
	 	 	 	 	 	 
	5.1

	 	Conditions Precedent in General
	 	 	53	 
	5.2

	 	Amount of Disbursements; Retainage
	 	 	58	 






i









 


 



	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	5.3

	 	Certifications, Representations and Warranties
	 	 	58	 
	5.4

	 	Costs
	 	 	59	 
	5.6

	 	Release of Retainage
	 	 	60	 
	5.7

	 	Interest Reserve
	 	 	61	 
	 
	 	 	 	 	 	 
	SECTION 6. REPRESENTATIONS AND WARRANTIES	 	 	62	 
	 
	 	 	 	 	 	 
	6.1

	 	Organization of Parties
	 	 	62	 
	6.2

	 	Title
	 	 	62	 
	6.3

	 	Improvements
	 	 	62	 
	6.4

	 	Validity and Enforceability of Documents.
	 	 	62	 
	6.5

	 	Litigation
	 	 	63	 
	6.6

	 	Utilities; Authorities
	 	 	63	 
	6.7

	 	Solvency
	 	 	63	 
	6.8

	 	Financial Statements
	 	 	64	 
	6.9

	 	Compliance with Laws
	 	 	64	 
	6.10

	 	Construction, Architectural and Engineering Contracts and Subcontracts, Contracts	 	 	64 	 
	6.11

	 	Budget
	 	 	65	 
	6.12

	 	Event of Default
	 	 	65	 
	6.13

	 	No Defects
	 	 	65	 
	6.14

	 	Additional Agreements
	 	 	65	 
	6.15

	 	Leases
	 	 	65	 
	6.16

	 	Fort Collins Work
	 	 	65	 
	 
	 	 	 	 	 	 
	SECTION 7. BORROWER’S COVENANTS; SECURITY INTERESTS	 	 	66	 
	 
	 	 	 	 	 	 
	7.1

	 	Manner of Construction
	 	 	66	 
	7.2

	 	Certificate of Completion
	 	 	66	 
	7.3

	 	Change Orders
	 	 	66	 
	7.4

	 	Compliance with Laws
	 	 	67	 
	7.5

	 	Inspection
	 	 	67	 
	7.6

	 	Appraisal
	 	 	68	 
	7.7

	 	Liens
	 	 	68	 
	7.8

	 	Concerning the Premises.
	 	 	69	 
	7.9

	 	Financial Statements; Reports
	 	 	69	 
	7.10

	 	Affirmation of Representations and Warranties
	 	 	70	 
	7.11

	 	Title
	 	 	70	 
	7.12

	 	Proceedings Affecting Property
	 	 	70	 
	7.13

	 	Disposal and Encumbrance of Property
	 	 	71	 
	7.14

	 	Insurance
	 	 	71	 
	7.15

	 	Performance of Obligations; Notice of Default
	 	 	72	 
	7.16

	 	Material Subcontracts
	 	 	72	 
	7.17

	 	Restrictions Affecting Borrower
	 	 	73	 
	7.18

	 	Use of Receipts; Limitation on Distributions
	 	 	73	 
	7.19

	 	Additional Documents
	 	 	74	 
	7.20

	 	Ineligible Securities
	 	 	74	 
	7.21

	 	OFAC
	 	 	74	 
	7.22

	 	Loan Expenses
	 	 	74	 






ii









 


 



	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	7.23

	 	Management
	 	 	74	 
	7.24

	 	Single Asset Entity
	 	 	74	 
	7.25

	 	No Debt
	 	 	75	 
	7.26

	 	Use of Loan Advances
	 	 	76	 
	7.27

	 	Budget
	 	 	76	 
	7.28

	 	Loan In Balance
	 	 	76	 
	7.29

	 	Development Fee
	 	 	76	 
	7.30

	 	Approved Leases
	 	 	76	 
	7.31

	 	Collateral Assignment of Plans, Permits and Contracts
	 	 	77	 
	7.32

	 	Security Interest Matters
	 	 	77	 
	7.33

	 	Commitments
	 	 	77	 
	7.34

	 	Aggregate Debt Service Coverage Ratio
	 	 	77	 
	7.35

	 	Project Debt Service Coverage Ratio
	 	 	78	 
	7.36

	 	Rate Management Agreement
	 	 	78	 
	7.37

	 	Fort Collins Ground Lease
	 	 	78	 
	7.38

	 	Consent and Subordination to Condominium and Declaration
	 	 	82	 
	7.39

	 	Condominium Covenants
	 	 	83	 
	7.40

	 	Fort Wayne Environmental Condition
	 	 	85	 
	7.41

	 	Clarksville Environmental Condition
	 	 	85	 
	 
	 	 	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT	 	 	86	 
	 
	 	 	 	 	 	 
	SECTION 9. REMEDIES	 	 	89	 
	 
	 	 	 	 	 	 
	SECTION 10. ADMINISTRATIVE AGENT	 	 	91	 
	 
	 	 	 	 	 	 
	10.1

	 	Authorization and Action
	 	 	91	 
	10.2

	 	Administrative Agent’s
Reliance, Etc.
	 	 	92	 
	10.3

	 	Notice of Defaults
	 	 	92	 
	10.4

	 	Administrative Agent as Lender
	 	 	92	 
	10.5

	 	Approvals of Lenders
	 	 	93	 
	10.6

	 	Lender Credit Decision, Etc.
	 	 	93	 
	10.7

	 	Indemnification of Administrative Agent by Lenders
	 	 	94	 
	10.8

	 	Successor Administrative Agent
	 	 	95	 
	10.9

	 	Other Loans by Lenders to Borrower
	 	 	95	 
	10.10

	 	Request for Administrative Agent Action
	 	 	96	 
	10.11

	 	Assignments/Participations
	 	 	96	 
	10.12

	 	Approval by Lenders
	 	 	99	 
	10.13

	 	Post Foreclosure Plans
	 	 	101	 
	10.14

	 	Co-Agents; Lead Managers
	 	 	102	 
	 
	 	 	 	 	 	 
	SECTION 11. MISCELLANEOUS	 	 	102	 
	 
	 	 	 	 	 	 
	11.1

	 	Additional Indebtedness
	 	 	102	 
	11.2

	 	Additional Acts
	 	 	102	 
	11.3

	 	Loan Agreement Governs
	 	 	102	 
	11.4

	 	Additional Advances
	 	 	103	 
	11.5

	 	Notice
	 	 	103	 
	11.6

	 	Successors and Assigns of Borrower
	 	 	104	 






iii









 


 



	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	11.7

	 	Confidentiality
	 	 	105	 
	11.8

	 	Governing Law
	 	 	105	 
	11.9

	 	Indemnity by Borrower
	 	 	105	 
	11.10

	 	Administrative Agent’s Representatives
	 	 	106	 
	11.11

	 	Headings
	 	 	107	 
	11.12

	 	No Partnership or Joint Venture
	 	 	107	 
	11.13

	 	Time is of the Essence
	 	 	107	 
	11.14

	 	Invalid Provisions
	 	 	107	 
	11.15

	 	Acts by Lenders
	 	 	107	 
	11.16

	 	Offset
	 	 	107	 
	11.17

	 	Binding Provisions
	 	 	107	 
	11.18

	 	Counterparts
	 	 	107	 
	11.19

	 	No Third Party Beneficiary
	 	 	107	 
	11.20

	 	Publicity
	 	 	107	 
	11.21

	 	Rules of Construction
	 	 	108	 
	11.22

	 	JURISDICTION AND VENUE
	 	 	108	 
	11.23

	 	JURY WAIVER
	 	 	108	 
	11.24

	 	Contribution and Subrogation
	 	 	108	 
	11.25

	 	Subordination
	 	 	110	 
	11.26

	 	Designation of Lead Borrower as Agent for Borrowers
	 	 	110	 
	11.27

	 	Joint and Several Liability
	 	 	111	 






List of Schedules and Exhibits




	 	 	 	 	 

	Schedule 1           
          
Commitment Amount/Percentage	 	 
	Schedule 3.3(b)     
        
Principal Payments

	 	
	Schedule 6.1        
          
Organization Chart	 	
	 
	 	 	 	 
	A-1

	 —	           Ames Legal Description

	 	
	A-2

	 —	            Clarksville Legal Description
	 	
	A-3

	 —	            Fort Collins Legal Description
	 	
	A-4

	 —	            Fort Wayne Legal Description
	 	
	B

	 —	            Form of Note
	 	
	C-1

	 —	            Ames Permitted Exceptions
	 	
	C-2

	 —	            Clarksville Permitted Exceptions
	 	
	C-3

	 —	            Fort Collins Permitted Exceptions
	 	 
	C-4

	 —	            Fort Wayne Permitted Exceptions
	 	
	D-1

	 	            Ames Budget	 	
	D-2

	 —	            Clarksville Budget
	 	
	D-3

	 —	            Fort Collins Budget
	 	
	D-4

	 —	            Fort Wayne Budget
	 	
	E

	 —	            Form of Assignment and Acceptance Agreement
	 	 
	F

	 —	            Form of Disbursement Request
	 	
	G

	 —	            Letter of Credit Provisions
	 	
	H

	 —	            Required Insurance
	 	
	I

	 —	           Debt Service Coverage Ratio Test
	 	







iv











 





CONSTRUCTION LOAN AND SECURITY AGREEMENT




     This CONSTRUCTION LOAN AND SECURITY AGREEMENT (this “Agreement”) is dated as of November 19,
2010, by and among CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP, a Delaware limited
partnership, CAMPUS CREST AT FORT WAYNE, LLC, a Delaware limited liability company, CAMPUS CREST AT
FORT COLLINS, LLC, a Delaware limited liability company, CAMPUS CREST AT CLARKSVILLE, LLC, a
Delaware limited liability company, and CAMPUS CREST AT AMES, LLC, a Delaware limited liability
company (collectively, jointly, and severally, “Borrower”), each of the financial institutions
identified on Schedule 1 hereto and their successors and assigns (collectively, the
“Lenders” and individually , a “Lender”) and THE PRIVATEBANK AND TRUST COMPANY, an Illinois state
chartered bank, and its successors and assigns (in such capacity “Administrative Agent”), as
administrative agent for the Lenders in accordance with the terms of Section 10 hereof.



SECTION 1.

RECITALS




     1.1 Fort Wayne Borrower is, or on the Loan Opening Date will be, the fee owner of the Fort
Wayne Land (these and all other capitalized terms used in this Section 1 and not otherwise
defined shall have the meanings ascribed thereto in Section 2 below). Fort Wayne Borrower
intends to complete the Fort Wayne Project in accordance with the Fort Wayne Plans and
Specifications.



     1.2 Fort Collins Borrower is, or on the Loan Opening Date will be, the owner of a leasehold
estate in the Fort Collins Land as set forth in the Fort Collins Ground Lease. Fort Collins
Borrower intends to complete the Fort Collins Project in accordance with the Fort Collins Plans and
Specifications.



     1.3 Clarksville Borrower is, or on the Loan Opening Date will be, the fee owner of the
Clarksville Land. Clarksville Borrower intends to complete the Clarksville Project in accordance
with the Clarksville Plans and Specifications.



     1.4 Ames Borrower is, or on the Loan Opening Date will be, the fee owner of the Ames Land.
Ames Borrower intends to complete the Ames Project in accordance with the Ames Plans and
Specifications.



     1.5 Borrower has requested that the Lenders make construction loans to Borrower in the
aggregate, maximum principal amount of Fifty-Two Million Seven Hundred Fifty-One Thousand One
Hundred Twenty-Three Dollars ($52,751,123.00) to pay a portion of the amounts needed to finance the
Project Costs associated with the Improvements. The Lenders have agreed to make the Loans subject
to the terms and conditions set forth herein.



     1.6 In consideration of the mutual agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, the Lenders,
and Administrative Agent agree as follows:



 









 





SECTION 2.

DEFINITIONS




     As used in this Agreement, the following terms shall have the following meanings:



     “Actual Debt Service” shall mean an amount equal to the sum of the actual principal and
interest payable under the Notes which is attributable to the applicable Project Tranche during the
applicable Calculation Period.



     “Actual Debt Service Coverage Ratio” shall mean the ratio, as determined by Administrative
Agent, of a Project’s Net Operating Income to a Project’s Actual Debt Service.



     “Additional Costs” has the meaning ascribed to such term in Section 3.9(a)(i) of this
Agreement.



     “Adjusted Base Rate” shall mean the rate per annum equal to the Base Rate plus three percent
(3.0%).



     “Adjusted LIBOR Rate” shall mean, for any Interest Period for any LIBOR Rate Loan, a rate per
annum equal to four and three quarters of one percent (4.75%) plus the LIBOR Rate for such Interest
Period.



     “Advance Rent Payment” shall mean a one-time initial payment from each Tenant to the Borrower
in an amount equal to one (1) month’s rent which shall be due and payable before the lease term
commences (on the date specified in the Lease) which payment shall be non-refundable upon payment
and applied to the last month’s rent due under the Lease; provided however, the application of such
Advance Rent Payment to the rent due in the final month of a Lease shall only continue to the
extent that a corresponding Advance Rent Payment shall be collected for the following rental year.



     “Affected Lender” has the meaning ascribed to such term in Section 3.9(e) of this
Agreement.



     “Affiliate” shall mean any Person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, another Person. A Person shall be deemed to control
another Person for the purposes of this definition if such first Person possesses, directly or
indirectly, the power to direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, common directors, trustees or
officers, by contract or otherwise.



     “Aggregate Debt Service Coverage Ratio” shall mean the ratio, as determined by Administrative
Agent, of the aggregate amount of each Project’s Net Operating Income to the aggregate amount of
each Project’s Implied Debt Service.



     “Ames Architectural Contract” shall mean that certain contract dated November 8, 2010 by and
between the Contractor and the Architect as assigned to Ames Borrower by that certain Assignment
Agreement dated as of even date herewith regarding the architectural



2









 




services performed or to be performed by the Architect in connection with the construction of
the Ames Improvements, which is in form and substance reasonably acceptable to Administrative
Agent.




     “Ames Assignment of Agreements” shall mean that certain Assignment of Agreements Affecting
Real Estate dated as of even date herewith from Ames Borrower to Administrative Agent for the
benefit of the Lenders, as the same may be amended, restated, modified or supplemented and in
effect from time to time.



     “Ames Assignment of Leases and Rents” shall mean that certain Assignment of Leases and Rents
dated as of even date herewith from Ames Borrower to Administrative Agent for the benefit of the
Lenders, as the same may be amended, restated, modified or supplemented and in effect from time to
time.



     “Ames Assignment of Management Agreement” shall mean that certain Assignment of Management
Agreement dated as of even date herewith from Ames Borrower to Administrative Agent for the benefit
of the Lenders, and consented to by the Property Manager, as the same may be amended, restated,
modified or supplemented and in effect from time to time.



     “Ames Borrower” shall mean Campus Crest at Ames, LLC, a Delaware limited liability company.



     “Ames Budget” shall mean the detailed budget of all costs to be incurred in connection with
the Work to be done in connection with the Ames Project, including both hard costs and soft costs,
as set forth on Exhibit D-1 attached hereto and made a part hereof, as the same may be
amended or modified, as provided herein.



     “Ames Condominium Declaration” shall mean that certain Declaration of Submission of Property
to Horizontal Property Regime for Campus Crest Condominiums, Ames, Iowa, in substantially the same
form and substance as reviewed and approved by Administrative Agent.



     “Ames Construction Completion Date” shall mean August 22, 2011.



     “Ames Construction Contract” shall mean that certain Standard Design-Build Agreement and
General Conditions Between Owner and Design-Builder dated as of October 27, 2010 between Ames
Borrower and the Contractor regarding the general contracting services to be performed in
connection with the construction of the Ames Improvements, as the same may be amended, restated,
modified or supplemented and in effect from time to time, in accordance with the terms and
requirements set forth in this Agreement.



     “Ames Construction Schedule” shall mean a reasonably detailed project development and
construction schedule specifying all of the projected start and completion dates (or delivery
dates) for each component of the development of the Ames Project remaining to be completed,
including, each separate component of performance of the Work.



     “Ames Engineer” shall mean Fox Engineering Associates, Inc., who shall perform certain
engineering services with respect to the construction of the Ames Improvements.



3









 





     “Ames Engineering Contract” shall mean that certain Agreement for Engineering Services dated
as of September 10, 2010 between Campus Crest Development, LLC and the Ames Engineer as assigned to
Ames Borrower by that certain Assignment Agreement dated as of even date herewith regarding the
engineering services to be performed in connection with the construction of the Ames Improvements.



     “Ames Equity Requirement” shall mean an equity investment by Ames Borrower in the Ames Project
of at least Eight Million Five Hundred Sixty-Four Thousand Two Hundred Twenty-Five Dollars
($8,564,225.00). For purposes of calculating the amount of the equity investment, the Ames Land
held by the Ames Borrower shall be valued at the cost to Ames Borrower unless otherwise approved by
Administrative Agent in writing.



     “Ames Improvements” shall mean all structures, all paving, lighting, landscaping, utility
lines and equipment and all other site improvements and all other improvements to be constructed on
the Ames Land in accordance with the Ames Plans and Specifications.



     “Ames Land” shall mean the tract or tracts of land located in Ames, Iowa and legally described
in Exhibit A-1 attached hereto.



     “Ames Mortgage” shall mean the Construction Mortgage, Security Agreement, Assignment of Leases
and Rents and Fixture Filing encumbering the Ames Property dated as of even date herewith by Ames
Borrower for the benefit of Administrative Agent for the benefit of the Lenders to secure the
Loans, as the same may be amended, restated, modified or supplemented and in effect from time to
time.



     “Ames Permitted Exceptions” shall mean the exceptions to the title of the Ames Real Property
listed on Exhibit C-1 attached hereto and all Leases of the Ames Property (approved by
Administrative Agent if such approval is required) hereafter executed in accordance with the terms
of the Loan Documents.



     “Ames Personal Property” shall mean and include any and all furniture, furnishings,
appliances, equipment and all fixtures (to the extent such fixtures are attached in a manner so as
not to be deemed to be part of the Ames Real Property) to be located at the Ames Land which will be
used or usable in connection with the ownership, development or operation of the Ames Real Property
and which will be owned by Ames Borrower or any of its Affiliates, provided however, at any one
time, personal property items described herein having a fair market, aggregate value of no greater
than Twenty-Five Thousand Dollars ($25,0000.00) may be leased by the Ames Borrower.



     “Ames Plans and Specifications” shall mean, collectively, the architectural and engineering
plans and specifications relating to the Work for the Ames Improvements, or any portion thereof,
all of which must be acceptable to Administrative Agent in its reasonable discretion.



     “Ames Project” shall mean the Ames Improvements to be developed in accordance with the terms
of this Agreement.



4









 





     “Ames Project Costs” shall mean each of the following items, but only to the extent
specifically set forth in the Ames Budget and only to the extent specifically related to the Ames
Project:




     (a) The actual hard costs of completing construction of the Ames Improvements,
including demolition and environmental remediation costs;




     (b) The actual costs of acquiring the Ames Land and acquiring and installing the Ames
Personal Property;




     (c) Premiums for title, casualty, liability and other insurance required by
Administrative Agent;




     (d) The cost of recording and filing the applicable Loan Documents;




     (e) Real estate taxes and other assessments which Ames Borrower is obligated to pay
during the term of the Loans;




     (f) Interest, fees and similar charges payable by Ames Borrower to Administrative
Agent or any Lender hereunder or under the Notes or any of the other Loan Documents;




     (g) Legal and other closing costs;




     (h) Architectural and consulting fees;




     (i) Such other soft costs as may be set forth in the Ames Budget or as may be
hereafter approved in writing by Administrative Agent; and




     (j) All other Loan Expenses.



     “Ames Property” shall mean the Ames Real Property, the Ames Improvements and the Ames Personal
Property (whether before or after completion of the Work) and all other tangible and intangible
assets benefitting or otherwise appertaining to the Ames Project, including, without limitation,
all of the collateral for the Loans described in the Loan Documents.



     “Ames Property Management Contract” shall mean that certain Property Management Agreement
dated as of even date herewith by and between Ames Borrower and the Property Manager, as amended,
modified or restated in accordance with the terms of this Agreement.



     “Ames Real Property” shall mean the Ames Land, the Ames Improvements and all easements and
appurtenants thereto.



     “Ames Tranche” has the meaning ascribed to such term in Section 3.1(g) of this
Agreement.



5









 





     “Applicable Laws” shall mean all laws, statutes, ordinances, rules, regulations, judgments,
decrees or orders of any state, federal or local government or agency which are applicable to the
Obligors and/or the Project.



     “Approved Manager” shall mean the Property Manager or any other reputable and creditworthy
property manager, subject to the prior approval of Administrative Agent, with a portfolio of
properties comparable to the Property under active management.



     “Architect” shall mean James L. Browning and/or Browning and Associates, who has performed or
shall perform architectural services with respect to the construction of the Improvements.



     “Architect’s Consent” shall mean that certain Architect’s Consent, Certificate and Agreement
made by Architect in favor of Administrative Agent for the benefit of the Lenders.



     “Architectural Contract” shall mean, individually and collectively, the Ames Architectural
Contract, the Fort Collins Architectural Contract, the Fort Wayne Architectural Contract and the
Clarksville Architectural Contract.



     “Assignee” has the meaning assigned to such term in Section 10.11(c) of this
Agreement.



     “Assignment and Acceptance Agreement” shall mean an Assignment and Acceptance Agreement among
a Lender, an Assignee and Administrative Agent, substantially in the form set forth as Exhibit
E.



     “Assignment of Agreements” shall mean, individually and collectively, the Ames Assignment of
Agreements, the Clarksville Assignment of Agreements, the Fort Collins Assignment of Agreements,
and the Fort Wayne Assignment of Agreements.



     “Assignment of Leases and Rents” shall mean, individually and collectively, the Ames
Assignment of Leases and Rents, the Fort Collins Assignment of Leases and Rents, the Fort Wayne
Assignment of Leases and Rents and the Clarksville Assignment of Leases and Rents.



     “Assignment of Management Agreement” shall mean, individually and collectively, the Ames
Assignment of Management Agreement, the Clarksville Assignment of Management Agreement, the Fort
Collins Assignment of Management Agreement, and the Fort Wayne Assignment of Management Agreement.



     “Assignment of Rate Management Agreement” shall mean that certain Assignment of Rate
Management Agreement to be entered into from Borrower to Administrative Agent for the benefit of
the Lenders, and consented to by the applicable counterparty, as the same may be amended, restated,
modified or supplemented and in effect from time to time.



     “Available Proceeds” shall mean the sum of (A) the undisbursed proceeds from a Project Tranche
(net of any unpaid accrued interest on the applicable Project Tranche and less the applicable
Letter of Credit Obligations attributable to such Project) allocated to each line item in the
applicable Budget (including any reserve specifically set aside for such line item) plus (B) the
amount of all amounts deposited by Borrower pursuant to Section 3.4(c) attributable to the



6









 




applicable Project, plus (C) upon the completion of construction of the applicable Project,
any rental payments received by Borrower for the applicable Project.




     “Bankruptcy Proceeding” has the meaning ascribed to such term in Section 8(i)(i) of
this Agreement.



     “Base Rate” shall mean the greater of (a) the Prime Rate or (b) the Federal Funds Rate
plus one half of one percent (0.5%).



     “Base Rate Loan” shall mean any portion of the outstanding principal amount of the Loans that
is bearing interest at the Adjusted Base Rate.



     “Borrower” has the meaning ascribed to such term in the introductory paragraph of this
Agreement.



     “BSA” has the meaning ascribed to such term in Section 7.21 of this Agreement.



     “Budget” shall mean, individually and collectively, the Ames Budget, the Fort Collins Budget,
the Fort Wayne Budget and the Clarksville Budget.



     “Business Day” shall mean a day of the week (but not a Saturday, Sunday or holiday) on which
the Chicago, Illinois offices of Administrative Agent are open to the public for carrying on
substantially all of Administrative Agent’s business functions, provided, however, that when used
in the definition of Interest Period or Interest Rate Determination Date, or when otherwise used in
connection with a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the
term “Business Day” shall also exclude any day on which banks in London, England are not open for
dealings in deposits of Dollars in the London interbank market. Unless specifically referenced in
this Agreement as a Business Day, all references to “days” shall be to calendar days.



     “Calculation Period” shall mean the twelve (12) month period immediately following any
Determination Date.



     “Cash
Collateralize” has the meaning ascribed to such term in Section 7 of Exhibit
G of this Agreement.



     “Claiming Party” has the meaning ascribed to such term in Section 11.24 of this
Agreement.



     “Clarksville Architectural Contract” shall mean that certain contract dated November 8, 2010
by and between the Contractor and the Architect as assigned to Clarksville Borrower by that certain
Assignment Agreement dated as of even date herewith regarding the architectural services performed
or to be performed by the Architect in connection with the construction of the Clarksville
Improvements, which is in form and substance reasonably acceptable to Administrative Agent.



     “Clarksville Assignment of Agreements” shall mean that certain Assignment of Agreements
Affecting Real Estate dated as of even date herewith from Clarksville Borrower to



7









 




Administrative Agent for the benefit of the Lenders, as the same may be amended, restated,
modified or supplemented and in effect from time to time.




     “Clarksville Assignment of Leases and Rents” shall mean that certain Assignment of Leases and
Rents dated as of even date herewith from Clarksville Borrower to Administrative Agent for the
benefit of the Lenders, as the same may be amended, restated, modified or supplemented and in
effect from time to time.



     “Clarksville Assignment of Management Agreement” shall mean that certain Assignment of
Management Agreement dated as of even date herewith from Clarksville Borrower to Administrative
Agent for the benefit of the Lenders, and consented to by the Property Manager, as the same may be
amended, restated, modified or supplemented and in effect from time to time.



     “Clarksville Borrower” shall mean Campus Crest at Clarksville, LLC, a Delaware limited
liability company.



     “Clarksville Budget” shall mean the detailed budget of all costs to be incurred in connection
with the Work to be done in connection with the Clarksville Project, including both hard costs and
soft costs, as set forth on Exhibit D-2 attached hereto and made a part hereof, as the same
may be amended or modified, as provided herein.



     “Clarksville Construction Completion Date” shall mean August 29, 2011.



     “Clarksville Construction Contract” shall mean that certain Standard Design-Build Agreement
and General Conditions Between Owner and Design-Builder dated as of October 27, 2010 between
Clarksville Borrower and the Contractor regarding the general contracting services to be performed
in connection with the construction of the Clarksville Improvements, as the same may be amended,
restated, modified or supplemented and in effect from time to time, in accordance with the terms
and requirements set forth in this Agreement.



     “Clarksville Construction Schedule” shall mean a reasonably detailed project development and
construction schedule specifying all of the projected start and completion dates (or delivery
dates) for each component of the development of the Clarksville Project remaining to be completed,
including, each separate component of performance of the Work.



     “Clarksville Deed of Trust” shall mean the Construction Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing encumbering the Clarksville Property dated as of
even date herewith by Clarksville Borrower for the benefit of Administrative Agent for the benefit
of the Lenders to secure the Loans, as the same may be amended, restated, modified or supplemented
and in effect from time to time.



     “Clarksville Engineer” shall mean Moore Design Services, who shall perform certain engineering
services with respect to the construction of the Clarksville Improvements.



     “Clarksville Engineering Contract” shall mean that certain Standard Form of Agreement Between
Design-Builder and Architect/Engineer for Design-Build Projects dated as of March 7, 2008 between
Campus Crest Development, LLC and the Clarksville Engineer as



8









 




assigned to Clarksville Borrower by that certain Assignment Agreement dated as of even date
herewith regarding the engineering services to be performed in connection with the construction of
the Clarksville Improvements.




     “Clarksville Equity Requirement” shall mean an equity investment by Clarksville Borrower in
the Clarksville Project of at least Eight Million Four Hundred Eighty-One Thousand Ten Dollars
($8,481,010.00). For purposes of calculating the amount of the equity investment, the Clarksville
Land held by the Clarksville Borrower shall be valued at the cost to Clarksville Borrower unless
otherwise approved by Administrative Agent in writing.



     “Clarksville Improvements” shall mean all structures, all paving, lighting, landscaping,
utility lines and equipment and all other site improvements and all other improvements to be
constructed on the Clarksville Land in accordance with the Clarksville Plans and Specifications.



     “Clarksville Land” shall mean the tract or tracts of land located in Clarksville, Tennessee
and legally described in Exhibit A-2 attached hereto.



     “Clarksville Permitted Exceptions” shall mean the exceptions to the title of the Clarksville
Real Property listed on Exhibit C-2 attached hereto and all Leases of the Clarksville
Property (approved by Administrative Agent if such approval is required) hereafter executed in
accordance with the terms of the Loan Documents.



     “Clarksville Personal Property” shall mean and include any and all furniture, furnishings,
appliances, equipment and all fixtures (to the extent such fixtures are attached in a manner so as
not to be deemed to be part of the Clarksville Real Property) to be located at the Clarksville Land
which will be used or usable in connection with the ownership, development or operation of the
Clarksville Real Property and which will be owned by Clarksville Borrower or any of its Affiliates,
provided however, at any one time, personal property items described herein having a fair market,
aggregate value of no greater than Twenty-Five Thousand Dollars ($25,0000.00) may be leased by the
Ames Borrower.



     “Clarksville Plans and Specifications” shall mean, collectively, the architectural and
engineering plans and specifications relating to the Work for the Clarksville Improvements, or any
portion thereof, all of which must be acceptable to Administrative Agent in its reasonable
discretion.



     “Clarksville Project” shall mean the Clarksville Improvements to be developed in accordance
with the terms of this Agreement.



     “Clarksville Project Costs” shall mean each of the following items, but only to the extent
specifically set forth in the Clarksville Budget and only to the extent specifically related to the
Clarksville Project:




     (a) The actual hard costs of completing construction of the Clarksville Improvements,
including demolition and environmental remediation costs;




     (b) The actual costs of acquiring the Clarksville Land and acquiring and installing
the Clarksville Personal Property;



9









 






     (c) Premiums for title, casualty, liability and other insurance required by
Administrative Agent;




     (d) The cost of recording and filing the applicable Loan Documents;




     (e) Real estate taxes and other assessments which Clarksville Borrower is obligated
to pay during the term of the Loans;




     (f) Interest, fees and similar charges payable by Clarksville Borrower to
Administrative Agent or any Lender hereunder or under the Notes or any of the other Loan
Documents;




     (g) Legal and other closing costs;




     (h) Architectural and consulting fees;




     (i) Such other soft costs as may be set forth in the Clarksville Budget or as may be
hereafter approved in writing by Administrative Agent; and




     (j) All other Loan Expenses.



     “Clarksville Property” shall mean the Clarksville Real Property, the Clarksville Improvements
and the Clarksville Personal Property (whether before or after completion of the Work) and all
other tangible and intangible assets benefitting or otherwise appertaining to the Clarksville
Project, including, without limitation, all of the collateral for the Loans described in the Loan
Documents.



     “Clarksville Property Management Contract” shall mean that certain Property Management
Agreement dated as of even date herewith by and between Clarksville Borrower and the Property
Manager, as amended, modified or restated in accordance with the terms of this Agreement.



     “Clarksville Real Property” shall mean the Clarksville Land, the Clarksville Improvements and
all easements and appurtenants thereto.



     “Clarksville Tranche” has the meaning ascribed to such term in Section 3.1(g) of this
Agreement.



     “Collateral” shall mean all of the property (including all personal, real, tangible and
intangible property) in which the Loan Documents grant (or purport to grant) Administrative Agent,
for the benefit of each Lender, a security interest.



     “Commitment” shall mean, as to each Lender, such Lender’s obligation to make Loans pursuant to
Section 3.1 in the amount set forth for such Lender on Schedule 1 attached hereto
as such Lender’s Commitment or as set forth in the applicable Assignment and Acceptance Agreement,
or as appropriate to reflect any assignments to or by such Lender effected in accordance with
Section 10.11.



10









 





     “Commitment Percentage” shall mean, as to each Lender, the ratio, expressed as a percentage,
of (a) the amount of such Lender’s Commitment to (b) the aggregate amount of the Commitments of all
Lenders hereunder; provided, however, that if at the time of determination the Commitments have
terminated or been reduced to zero (0), the “Commitment Percentage” of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such termination or reduction.



     “Condominium” means that certain condominium to be known as Campus Crest Condominiums, Ames,
Iowa, to be established pursuant to the Condominium Law, which will be comprised of the Condominium
Units, together with all applicable common areas and facilities, located entirely upon the Ames
Land and the establishment of which shall be evidenced by the Ames Condominium Declaration.



     “Condominium Conditions” has the meaning set forth in Section 7.38 of this Agreement.



     “Condominium Covenants” has the meaning set forth in Section 7.39 of this Agreement.



     “Condominium Law” shall mean the Horizontal Property Act, Chapter 499B of the Iowa Code, as
may be amended from time to time.



     “Condominium Units” means, singly and collectively, those certain condominium units which
shall be established in the Ames Condominium Declaration, as shown on the Ames Plans and
Specifications and included in the Ames Budget.



     “Construction Commencement Date” shall mean February 1, 2011.



     “Construction Completion Date” shall mean, individually and collectively, the Ames
Construction Completion Date, the Clarksville Construction Completion Date, the Fort Collins
Construction Completion Date and the Fort Wayne Construction Completion Date.



     “Construction Contract” shall mean, individually and collectively, the Ames Construction
Contract, the Fort Collins Construction Contract, the Fort Wayne Construction Contract, and the
Clarksville Construction Contract.



     “Construction Escrow Agreements” shall mean, individually and collectively, the Fort Collins
Construction Escrow Agreement and the Fort Wayne Construction Escrow Agreement.



     “Construction Schedule” shall mean, individually and collectively, the Ames Construction
Schedule, the Clarksville Construction Schedule, the Fort Collins Construction Schedule, and the
Fort Wayne Construction Schedule.



     “Consultant” shall mean an independent architect or engineer selected by Administrative Agent,
provided, however, nothing contained in this Agreement shall prohibit a Consultant from being an
employee of Administrative Agent or any of Administrative Agent’s Affiliates.



11









 





     “Continue”, “Continuation” and “Continued” each shall mean the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 3.2(g) of this
Agreement.



     “Contractor” shall mean Campus Crest Construction, LLC, who shall perform general contracting
services with respect to the construction of the Improvements.



     “Contractor’s Consent” shall mean that certain Contractor’s Consent, Certificate and Agreement
made by Contractor in favor of Administrative Agent for the benefit of the Lenders.



     “Contributing Party” has the meaning ascribed to such term in Section 11.24 of this
Agreement.



     “Contribution Amount” has the meaning ascribed to such term in Section 11.24 of this
Agreement.



     “Convert”, “Conversion” and “Converted” each shall mean the conversion of a Loan of one Type
into a Loan of another Type.



     “Cure Period” has the meaning ascribed to such term in Section 8(b) of this Agreement.



     “Declarations” shall mean any documents containing covenants, conditions, restrictions,
easements, operating agreements or the like, which benefit or burden the Property, or both, whether
or not recorded.



     “Defaulting Lender” has the meaning ascribed to such term in Section 3.7(a) of this
Agreement.



     “Default Notice” has the meaning ascribed to such term in Section 3.7(b) of this
Agreement.



     “Default Rate” shall mean the lesser of (a) five percent (5.0%) per annum plus the greater of
(i) the Adjusted Base Rate and (ii) the Adjusted LIBOR Rate and (b) the maximum rate provided by
Applicable Law.



     “Determination Date” shall mean, commencing as of September 1, 2011, each March 31, June 30,
September 1, and December 31 of each year during the term of the Loan.



     “Distribution” has the meaning ascribed to that term in Section 7.18 of this
Agreement.



     “Eligible Assignee” shall mean any Person who is: (i) currently a Lender; (ii) a commercial
bank, trust company, insurance company, investment bank or pension fund organized under the laws of
the United States of America, or any state thereof, and having total assets in excess of Two
Hundred Fifty Million Dollars ($250,000,000.00); (iii) a savings and loan association or savings
bank organized under the laws of the United States of America, or any state thereof, and having a
tangible net worth of at least Five Hundred Million Dollars ($500,000,000.00); or (iv) a commercial
bank organized under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a



12









 




political subdivision of any such country, and having total assets in excess of Ten Billion
Dollars ($10,000,000,000.00), provided that such bank is acting through a branch or agency located
in the United States of America.




     “Engineer” shall mean, individually and collectively, the Ames Engineer, the Clarksville
Engineer, the Fort Collins Engineer, and the Fort Wayne Engineer.



     “Engineer’s Consent” shall mean that certain Engineer’s Consent, Certificate and Agreement
made by Engineer in favor of Administrative Agent for the benefit of the Lenders.



     “Engineering Contract” shall mean, individually and collectively, the Ames Engineering
Contract, the Fort Collins Engineering Contract, the Fort Wayne Engineering Contract and the
Clarksville Engineering Contract.



     “Environmental Laws” shall mean any and all federal, state and local laws or statutes that
relate to or impose liability or standards of conduct concerning public or occupational health and
safety or the environment, as now or hereafter in effect and as have been or hereafter may be
amended, modified or reauthorized, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), the Hazardous
Materials Transportation Authorization Act of 1994 (42 U.S.C. §5101 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. §1251 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.),
the Clean Air Act (42 U.S.C. §7401 et seq.), the Safe Drinking Water Act of 1974 (42 U.S.C. §300(f)
et seq.), and the Occupational Safety and Health Act of 1970 (29 U.S.C. §651 et seq.), and all
rules, regulations, codes, ordinances and guidance documents now or hereafter promulgated or
published thereunder, and the provisions of any licenses, permits, orders and decrees now or
hereafter issued pursuant to any of the foregoing.



     “Equity Requirements” shall mean, individually and collectively, the Ames Equity Requirement,
the Clarksville Equity Requirement, the Fort Collins Equity Requirement, and the Fort Wayne Equity
Requirement.



     “Event of Default” has the meaning ascribed to such term in Section 8 of this
Agreement.



     “Extended Maturity Date” shall mean November 19, 2014.



     “Extension Option” has the meaning ascribed to such term in Section 3.5(a) of this
Agreement.



     “Extension Request” has the meaning ascribed to such term in Section 3.5(a)(i) of this
Agreement.



     “Federal Funds Rate” shall mean for any day, a fluctuating interest rate equal for each day
during such period to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day



13









 




which is a Business Day, the average of the quotations for such day on such transactions
received by Administrative Agent from three federal funds brokers of recognized standing selected
by Administrative Agent. Administrative Agent’s determination of such rate shall be binding and
conclusive absent manifest error.




     “Fee Letter” shall mean that separate fee letter dated as of even date herewith by and between
Borrower and Administrative Agent.



     “Force Majeure” shall mean strikes, lock-outs, war, civil disturbance, natural disaster, acts
of terrorism or acts of God which cause a delay in Borrower’s performance of an Obligation related
to the Work; provided, however, that (a) Borrower must give notice to Administrative Agent within
fifteen (15) days after the occurrence of an event which it believes to constitute Force Majeure,
(b) in no event shall Force Majeure extend the time for the performance of an Obligation by more
than sixty (60) days, and (c) circumstances that can be remedied or mitigated through the payment
of money shall not constitute Force Majeure hereunder to the extent such remedy or mitigation is
deemed reasonable by Administrative Agent in its sole discretion.



     “Fort Collins Architectural Contract” shall mean that certain contract dated November 8, 2010
by and between the Contractor and the Architect as assigned to Fort Collins Borrower by that
certain Assignment Agreement dated as of even date herewith regarding the architectural services
performed or to be performed by the Architect in connection with the construction of the Fort
Collins Improvements, which is in form and substance reasonably acceptable to Administrative Agent.



     “Fort Collins Assignment of Agreements” shall mean that certain Assignment of Agreements
Affecting Real Estate dated as of even date herewith from Fort Collins Borrower to Administrative
Agent for the benefit of the Lenders, as the same may be amended, restated, modified or
supplemented and in effect from time to time.



     “Fort Collins Assignment of Leases and Rents” shall mean that certain Assignment of Leases and
Rents dated as of even date herewith from Fort Collins Borrower to Administrative Agent for the
benefit of the Lenders, as the same may be amended, restated, modified or supplemented and in
effect from time to time.



     “Fort Collins Assignment of Management Agreement” shall mean that certain Assignment of
Management Agreement dated as of even date herewith from Fort Collins Borrower to Administrative
Agent for the benefit of the Lenders, and consented to by the Property Manager, as the same may be
amended, restated, modified or supplemented and in effect from time to time.



     “Fort Collins Borrower” shall mean Campus Crest at Fort Collins, LLC, a Delaware limited
liability company.



     “Fort Collins Budget” shall mean the detailed budget of all costs to be incurred in connection
with the Work to be done in connection with the Fort Collins Project, including both hard costs and
soft costs, as set forth on Exhibit D-3 attached hereto and made a part hereof, as the same
may be amended or modified, as provided herein.



14









 





     “Fort Collins Construction Completion Date” shall mean August 22, 2011.



     “Fort Collins Construction Contract” shall mean that certain Standard Design-Build Agreement
and General Conditions Between Owner and Design-Builder dated as of October 27, 2010 between Fort
Collins Borrower and the Contractor regarding the general contracting services to be performed in
connection with the construction of the Fort Collins Improvements, as the same may be amended,
restated, modified or supplemented and in effect from time to time, in accordance with the terms
and requirements set forth in this Agreement.



     “Fort Collins Construction Escrow Agreement” shall mean that certain construction loan escrow
agreement dated as of even date herewith made by and among the Administrative Agent, the Fort
Collins Borrower, the Title Company and the Contractor establishing a construction escrow with the
Title Company, as escrowee through which all Loan Advances from the Fort Collins Tranche and the
Fort Collins Equity Requirements for construction costs will be disbursed.



     “Fort Collins Construction Schedule” shall mean a reasonably detailed project development and
construction schedule specifying all of the projected start and completion dates (or delivery
dates) for each component of the development of the Fort Collins Project remaining to be completed,
including, each separate component of performance of the Work.



     “Fort Collins Deed of Trust” shall mean the Leasehold Construction Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing encumbering the Fort Collins Ground
Lease dated as of even date herewith by Fort Collins Borrower for the benefit of Administrative
Agent for the benefit of the Lenders to secure the Loans, as the same may be amended, restated,
modified or supplemented and in effect from time to time.



     “Fort Collins Engineer” shall mean Northern Engineering Services, Inc., who shall perform
certain engineering services with respect to the construction of the Fort Collins Improvements.



     “Fort Collins Engineering Contract” shall mean that certain Standard Form of Agreement Between
Design-Builder and Engineer for Design-Build Projects dated as of May 21, 2009 between Campus Crest
Development, LLC and the Fort Collins Engineer, as amended by that certain Contract Amendment No. 1
dated as of March 10, 201, as amended further by that certain Contract Amendment No. 2 dated as of
June 23, 2010, amended further by that certain Contract Amendment No. 3 dated as of November 9,
2010, as assigned to Fort Collins Borrower by that certain Assignment Agreement dated as of even
date regarding the engineering services to be performed in connection with the construction of the
Fort Collins Improvements.



     “Fort Collins Equity Requirement” shall mean an equity investment by Fort Collins Borrower in
the Fort Collins Project of at least Ten Million One Hundred Fifty-One Thousand Nine Hundred
Seventeen Dollars ($10,151,917.00). For purposes of calculating the amount of the equity
investment, the Fort Collins Ground Lease held by the Fort Collins Borrower shall be valued at the
cost to Fort Collins Borrower unless otherwise approved by Administrative Agent in writing.



15









 





     “Fort Collins Ground Lease” shall mean that certain Ground Lease Agreement made by and between
the Ground Lessor and Campus Crest Development, LLC, a North Carolina limited liability company
dated as of June 23, 2009, as amended by that certain First Amendment to Ground Lease Agreement
dated as of December 2009, that certain Second Amendment to Ground Lease Agreement dated as of
March 29, 2010 and that certain Third Amendment to Ground Lease Agreement dated as of June 30, 2010
and as amended and assigned to Fort Collins Borrower under the terms of that certain Fourth
Amendment to and Assignment of Ground Lease Agreement among Campus Crest Development, LLC, Fort
Collins Borrower and Ground Lessor dated as of November 11, 2010.



     “Fort Collins Ground Lease Estoppel” shall mean that certain Ground Lease Estoppel dated as of
November 19, 2010 made by the Fort Collins Ground Lessor in favor of Administrative Agent for the
benefit of the Lenders.



     “Fort Collins Ground Lessor” shall mean Colorado State University Research Foundation, a
Colorado non-profit corporation.



     “Fort Collins Improvements” shall mean all structures, all paving, lighting, landscaping,
utility lines and equipment and all other site improvements and all other improvements to be
constructed on the Fort Collins Land in accordance with the Fort Collins Plans and Specifications.



     “Fort Collins Land” shall mean the tract or tracts of land located in Fort Collins, Colorado
and legally described in Exhibit A-3 attached hereto.



     “Fort Collins Permitted Exceptions” shall mean the exceptions to the title of the Fort Collins
Real Property listed on Exhibit C-3 attached hereto and all Leases of the Fort Collins
Property (approved by Administrative Agent if such approval is required) hereafter executed in
accordance with the terms of the Loan Documents.



     “Fort Collins Personal Property” shall mean and include any and all furniture, furnishings,
appliances, equipment and all fixtures (to the extent such fixtures are attached in a manner so as
not to be deemed to be part of the Fort Collins Real Property) to be located at the Fort Collins
Land which will be used or usable in connection with the ownership, development or operation of the
Fort Collins Real Property and which will be owned by Fort Collins Borrower or any of its
Affiliates, provided however, at any one time, personal property items described herein having a
fair market, aggregate value of no greater than Twenty-Five Thousand Dollars ($25,0000.00) may be
leased by Fort Collins Borrower.



     “Fort Collins Plans and Specifications” shall mean, collectively, the architectural and
engineering plans and specifications relating to the Work for the Fort Collins Improvements, or any
portion thereof, all of which must be acceptable to Administrative Agent in its reasonable
discretion.



     “Fort Collins Plat” shall mean that certain plat titled Plat of the Grove, in substantially
the same form and substance as reviewed and approved by Administrative Agent.



16









 





     “Fort Collins Project” shall mean the Fort Collins Improvements to be developed in accordance
with the terms of this Agreement.



     “Fort Collins Project Costs” shall mean each of the following items, but only to the extent
specifically set forth in the Fort Collins Budget and only to the extent specifically related to
the Fort Collins Project:




     (a) The actual hard costs of completing construction of the Fort Collins
Improvements, including demolition and environmental remediation costs;




     (b) The actual costs of entering into the Fort Collins Ground Lease and acquiring and
installing the Fort Collins Personal Property;




     (c) Premiums for title, casualty, liability and other insurance required by
Administrative Agent;




     (d) The cost of recording and filing the applicable Loan Documents;




     (e) Real estate taxes and other assessments which Fort Collins Borrower is obligated
to pay during the term of the Loans;




     (f) Interest, fees and similar charges payable by Fort Collins Borrower to
Administrative Agent or any Lender hereunder or under the Notes or any of the other Loan
Documents;




     (g) Legal and other closing costs;




     (h) Architectural and consulting fees;




     (i) Such other soft costs as may be set forth in the Fort Collins Budget or as may be
hereafter approved in writing by Administrative Agent; and




     (j) All other Loan Expenses.



     “Fort Collins Property” shall mean the Fort Collins Real Property, the Fort Collins
Improvements and the Fort Collins Personal Property (whether before or after completion of the
Work) and all other tangible and intangible assets benefitting or otherwise appertaining to the
Fort Collins Project, including, without limitation, all of the collateral for the Loans described
in the Loan Documents.



     “Fort Collins Property Management Contract” shall mean that certain Property Management
Agreement dated as of even date herewith by and between Fort Collins Borrower and the Property
Manager, as amended, modified or restated in accordance with the terms of this Agreement.



     “Fort Collins Real Property” shall mean the Fort Collins Land, the Fort Collins Improvements
and all easements and appurtenants thereto.



17









 





     “Fort Collins Tranche” has the meaning ascribed to such term in Section 3.1(g) of this
Agreement.



     “Fort Wayne Architectural Contract” shall mean that certain contract dated November 8, 2010 by
and between the Contractor and the Architect as assigned to Fort Wayne Borrower by that certain
Assignment Agreement dated as of even date herewith regarding the architectural services performed
or to be performed by the Architect in connection with the construction of the Fort Wayne
Improvements, which is in form and substance reasonably acceptable to Administrative Agent.



     “Fort Wayne Assignment of Agreements” shall mean that certain Assignment of Agreements
Affecting Real Estate dated as of even date herewith from Fort Wayne Borrower to Administrative
Agent for the benefit of the Lenders, as the same may be amended, restated, modified or
supplemented and in effect from time to time.



     “Fort Wayne Assignment of Leases and Rents” shall mean that certain Assignment of Leases and
Rents dated as of even date herewith from Fort Wayne Borrower to Administrative Agent for the
benefit of the Lenders, as the same may be amended, restated, modified or supplemented and in
effect from time to time.



     “Fort Wayne Assignment of Management Agreement” shall mean that certain Assignment of
Management Agreement dated as of even date herewith from Fort Wayne Borrower to Administrative
Agent for the benefit of the Lenders, and consented to by the Property Manager, as the same may be
amended, restated, modified or supplemented and in effect from time to time.



     “Fort Wayne Borrower” shall mean Campus Crest at Fort Wayne, LLC, a Delaware limited liability
company.



     “Fort Wayne Budget” shall mean the detailed budget of all costs to be incurred in connection
with the Work to be done in connection with the Fort Wayne Project, including both hard costs and
soft costs, as set forth on Exhibit D-4 attached hereto and made a part hereof, as the same
may be amended or modified, as provided herein.



     “Fort Wayne Construction Completion Date” shall mean August 22, 2011.



     “Fort Wayne Construction Contract” shall mean that certain Standard Design-Build Agreement and
General Conditions Between Owner and Design-Builder dated as of October 27, 2010 between Fort Wayne
Borrower and the Contractor regarding the general contracting services to be performed in
connection with the construction of the Fort Wayne Improvements, as the same may be amended,
restated, modified or supplemented and in effect from time to time, in accordance with the terms
and requirements set forth in this Agreement.



     “Fort Wayne Construction Escrow Agreement” shall mean that certain construction loan escrow
agreement dated as of even date herewith made by and among the Administrative Agent, the Fort Wayne
Borrower, the Title Company and the Contractor establishing a construction escrow with the Title
Company, as escrowee through which all Loan Advances from the Fort Wayne Tranche for construction
costs will be disbursed.



18









 





     “Fort Wayne Construction Schedule” shall mean a reasonably detailed project development and
construction schedule specifying all of the projected start and completion dates (or delivery
dates) for each component of the development of the Fort Wayne Project remaining to be completed,
including, each separate component of performance of the Work.



     “Fort Wayne Engineer” shall mean ForeSight Consulting, LLC, who shall perform certain
engineering services with respect to the construction of the Fort Wayne Improvements.



     “Fort Wayne Engineering Contract” shall mean that certain Letter Agreement dated as of
December 12, 2008 and executed July 31, 2009 between Campus Crest Development, LLC and the Fort
Wayne Engineer as assigned to Fort Wayne Borrower by that certain Assignment Agreement dated as of
even date regarding the engineering services to be performed in connection with the construction
of the Fort Wayne Improvements.



     “Fort Wayne Equity Requirement” shall mean an equity investment by Fort Wayne Borrower in the
Fort Wayne Project of at least Seven Million Nine Hundred Seventy Thousand Two Hundred Sixty-Four
Dollars ($7,970,264.00). For purposes of calculating the amount of the equity investment, the Fort
Wayne Land held by the Fort Wayne Borrower shall be valued at the cost to Fort Wayne Borrower
unless otherwise approved by Administrative Agent in writing.



     “Fort Wayne Improvements” shall mean all structures, all paving, lighting, landscaping,
utility lines and equipment and all other site improvements and all other improvements to be
constructed on the Fort Wayne Land in accordance with the Fort Wayne Plans and Specifications.



     “Fort Wayne Land” shall mean the tract or tracts of land located in Fort Wayne, Indiana and
legally described in Exhibit A-4 attached hereto.



     “Fort Wayne Mortgage” shall mean the Construction Mortgage, Security Agreement, Assignment of
Leases and Rents and Fixture Filing encumbering the Fort Wayne Property dated as of even date
herewith by Fort Wayne Borrower for the benefit of Administrative Agent for the benefit of the
Lenders to secure the Loans, as the same may be amended, restated, modified or supplemented and in
effect from time to time.



     “Fort Wayne Permitted Exceptions” shall mean the exceptions to the title of the Fort Wayne
Real Property listed on Exhibit C-4 attached hereto and all Leases of the Fort Wayne
Property (approved by Administrative Agent if such approval is required) hereafter executed in
accordance with the terms of the Loan Documents.



     “Fort Wayne Personal Property” shall mean and include any and all furniture, furnishings,
appliances, equipment and all fixtures (to the extent such fixtures are attached in a manner so as
not to be deemed to be part of the Fort Wayne Real Property) to be located at the Fort Wayne Land
which will be used or usable in connection with the ownership, development or operation of the Fort
Wayne Real Property and which will be owned by Fort Wayne Borrower or any of its Affiliates,
provided however, at any one time, personal property items described herein having a fair market,
aggregate value of no greater than Twenty-Five Thousand Dollars ($25,0000.00) may be leased by Fort
Wayne Borrower.



19









 





     “Fort Wayne Plans and Specifications” shall mean, collectively, the architectural and
engineering plans and specifications relating to the Work for the Fort Wayne Improvements, or any
portion thereof, all of which must be acceptable to Administrative Agent in its reasonable
discretion.



     “Fort Wayne Project” shall mean the Fort Wayne Improvements to be developed in accordance with
the terms of this Agreement.



     “Fort Wayne Project Costs” shall mean each of the following items, but only to the extent
specifically set forth in the Fort Wayne Budget and only to the extent specifically related to the
Fort Wayne Project:




     (a) The actual hard costs of completing construction of the Fort Wayne Improvements,
including demolition and environmental remediation costs;




     (b) The actual costs of acquiring the Fort Wayne Land and acquiring and installing
the Fort Wayne Personal Property;




     (c) Premiums for title, casualty, liability and other insurance required by
Administrative Agent;




     (d) The cost of recording and filing the applicable Loan Documents;




     (e) Real estate taxes and other assessments which Fort Wayne Borrower is obligated to
pay during the term of the Loans;




     (f) Interest, fees and similar charges payable by Fort Wayne Borrower to
Administrative Agent or any Lender hereunder or under the Notes or any of the other Loan
Documents;




     (g) Legal and other closing costs;




     (h) Architectural and consulting fees;




     (i) Such other soft costs as may be set forth in the Fort Wayne Budget or as may be
hereafter approved in writing by Administrative Agent; and




     (j) All other Loan Expenses.



     “Fort Wayne Property” shall mean the Fort Wayne Real Property, the Fort Wayne Improvements and
the Fort Wayne Personal Property (whether before or after completion of the Work) and all other
tangible and intangible assets benefitting or otherwise appertaining to the Fort Wayne Project,
including, without limitation, all of the collateral for the Loans described in the Loan Documents.



     “Fort Wayne Property Management Contract” shall mean that certain Property Management
Agreement dated as of even date herewith by and between Fort Wayne Borrower



20









 




and the Property Manager, as amended, modified or restated in accordance with the terms of
this Agreement.




     “Fort Wayne Real Property” shall mean the Fort Wayne Land, the Fort Wayne Improvements and all
easements and appurtenants thereto.



     “Fort Wayne Tranche” has the meaning ascribed to such term in Section 3.1(g) of this
Agreement.



     “Gross Revenues” shall mean the pro forma gross rental income for the applicable Calculation
Period from all executed Leases (approved by Lender in accordance with the terms set forth in this
Agreement) with tenants in occupancy for that academic year for a Property.



     “Guarantors” shall mean, individually and collectively, jointly and severally, the Payment and
Completion Guarantor and the Limited Guarantor.



     “Guaranty” shall mean, individually and collectively, the Payment and Completion Guaranty and
the Limited Guaranty.



     “Hazardous Material” shall mean any hazardous substance or any pollutant or contaminant
defined as such in, or for purposes of, any federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree, in each case as now or hereafter in force and effect; asbestos
or any substance or compound containing asbestos; polychlorinated biphenyls or any substance or
compound containing any polychlorinated biphenyl; petroleum and petroleum products; pesticides; and
any other hazardous, toxic or dangerous waste, substance or material but excluding materials
customarily used in the construction and maintenance of buildings, and cleaning materials, office
products and other materials customarily used in the operation of properties such as the Property,
provided that, in each case, such materials are stored, handled, used and disposed of in compliance
with applicable laws and regulations and are individually and in the aggregate not in such
quantities as may result in contamination of the Property or any part thereof.



     “Implied Debt Service” shall mean an amount equal to the higher of (a) the sum of the actual
principal and interest payable under the Notes which is attributable to the applicable Project
Tranche during the applicable Calculation Period, or (b) the payments of principal and interest
that would have been payable under a hypothetical loan during the Calculation Period, assuming (i)
an initial loan balance equal to the fully funded amount of the applicable Project Tranche, (ii) an
interest rate equal to the Notional Interest Rate, and (iii) amortization of the sum of the fully
funded amount of the applicable Project Tranche over a thirty (30) year amortization period.



     “Implied Debt Service Coverage Ratio” shall mean the ratio, as determined by Administrative
Agent, of a Project’s Net Operating Income to a Project’s Implied Debt Service.



     “Improvements” shall mean, individually and collectively, the Ames Improvements, the Fort
Collins Improvements, the Fort Wayne Improvements, and the Clarksville Improvements.



21









 





     “In Balance” shall mean that, as of any date of determination, as determined in Administrative
Agent’s sole and absolute discretion: (1) the Available Proceeds are sufficient to pay (i) the
unpaid costs and expenses that will be incurred to complete the Improvements in connection with the
applicable Project, and (ii) all applicable Project Costs remaining unpaid, and (2) the costs and
expenses to complete each line item in the applicable Budget for such Project do not exceed the
Available Proceeds allocated therefor.



     “Indemnifiable Amounts” has the meaning ascribed to such term in Section 10.7 of this
Agreement.



     “Indemnified Party” has the meaning ascribed to such term in Section 11.9 of this
Agreement.



     “Indemnity Agreement” shall mean that certain Environmental Indemnity Agreement dated as of
even date herewith by Borrower and the Payment and Completion Guarantor in favor of Administrative
Agent for the benefit of the Lenders, as the same may be amended, restated, modified or
supplemented and in effect from time to time.



     “Initial Advance” shall mean the first draw or disbursement made from the proceeds of the
Loans.



     “Initial Maturity Date” shall mean November 19, 2013.



     “Interest Period” shall mean a period of one (1), three (3) or six (6) months provided that:




(a) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the following Business Day unless
the result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the preceding
Business Day;




(b) any Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period shall
end on the last Business Day of the calendar month at the end of such Interest
Period; and




(c) Borrower may not select any Interest Period which would extend beyond the
Maturity Date.



     “Interest Rate” shall mean the Adjusted LIBOR Rate, unless Converted to the Adjusted Base Rate
pursuant to Section 3.9(a)(ii), Section 3.9(b) or Section 3.9(c).



     “Interest Rate Determination Date” shall mean, for the initial disbursement of the Loans, the
date of such disbursement, and for all other purposes, the second (2nd) Business Day
prior to the proposed commencement of a LIBOR Rate Loan or a Base Rate Loan or the Continuation of
a LIBOR Rate Loan or the Conversion of a LIBOR Rate Loan to a Base Rate Loan.



22









 





     “Interest Reserve” shall have the meaning ascribed to such term in Section 5.7 of this
Agreement.



     “Issuing Lender” shall mean The PrivateBank and Trust Company in its capacity as issuer of
Letters of Credit hereunder or any successor issuer of Letter of Credit hereunder.



     “Land” shall mean, individually and collectively, the Ames Land, the Clarksville Land, the
Fort Collins Land, and the Fort Wayne Land.



     “Lead Borrower” shall mean Campus Crest Communities Operating Partnership, LP, a Delaware
limited partnership.



     “Lease” or “Leases” shall mean the leases entered into by Borrower which are now or hereafter
executed by or on behalf of Tenants pertaining to the rental of space within the Property in
accordance with the terms set forth in this Agreement.



     “Lease Breach Threshold” shall mean an amount no greater than five (5%) as to any one Project
and five (5%) as to the aggregate Project.



     “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment and Acceptance
Agreement, or such other office of such Lender as such Lender may notify Administrative Agent in
writing from time to time.



     “Letter of Credit” means any letter of credit issued hereunder.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a letter of credit in the form from time to time in use by the Issuing Lender.



     “Letter of Credit Borrowing” shall mean an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Loan
Advance.



     “Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity
Date (or, if such day is not a Business Day, the next preceding Business Day).



     “Letter of Credit Extension” shall mean, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.



     “Letter of Credit Obligations” shall mean, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of all Letter
of Credit Borrowings.



     “Letter of Credit Sublimit” shall mean an amount equal to Four Million Dollars
($4,000,000.00). The Letter of Credit Sublimit is part of, and not in addition to, the combined
Commitments.



23









 





     “LIBOR Rate” shall mean, on the Interest Rate Determination Date thereof, a variable rate of
interest equal to, at Administrative Agent’s election (i) the rate described as the “London
Interbank Offered Rate” for the applicable Interest Period in the Money Rates section of The Wall
Street Journal, or (ii) the rate of interest determined by Administrative Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest error) to be the
London interbank offered rate for U.S. Dollars for the applicable Interest Period based upon the
information presented on Bloomberg, L.P., page “BBAM”, or such other page as may replace page BBAM
on that service (the “Libor Index Page”), as of 11:00 a.m. (London time) on the day of
determination of such LIBOR Rate. If the Libor Index Page or The Wall Street Journal ceases to
provide such quotes, a comparable replacement, as determined by Administrative Agent, may be used
by Administrative Agent. If on any date of determination (a) more than one “London Interbank
Offered Rate” for the applicable Interest Period is published in The Wall Street Journal, or (b)
more than one London interbank offered rate for the applicable Interest Period appears on the Libor
Index Page, the highest of such rates will be the rate used for such day. Administrative Agent’s
determination of the LIBOR Rate shall be conclusive, absent manifest error and shall remain fixed
during such Interest Period.



     “LIBOR Rate Loan” shall mean each portion of the outstanding Principal Balance of the Loans
that is bearing interest at an applicable Adjusted LIBOR Rate.



     “Limited Guarantor” shall mean Campus Crest Properties, LLC, a North Carolina limited
liability company.



     “Limited Guaranty” shall mean that certain Limited Guaranty of Payment dated as of even date
herewith from Limited Guarantor in favor of Administrative Agent for the benefit of the Lenders, as
the same may be amended, restated, modified or supplemented and in effect from time to time.



     “Loan” or “Loans” shall mean the loans from Lenders to Borrower in an amount not to exceed
Fifty-Two Million Seven Hundred Fifty-One Thousand One Hundred Twenty-Three Dollars
($52,751,123.00) in the aggregate, which are to be disbursed pursuant to this Agreement and which
loans shall otherwise be governed by the provisions hereof.



     “Loan Advance” shall mean a disbursement of all or any portion of the Loans and the issuance
of any Letter of Credit.



     “Loan Documents” shall mean this Agreement, the Mortgage, the Notes, the Assignment of Leases
and Rents, the Assignment of Rate Management Agreement, the Assignment of Agreements, the
Assignment of Management Agreement, the Pledge Agreement, the Indemnity Agreement, the Guaranty,
the Rate Management Agreement, if any (provided however, to the extent that a Rate Management
Agreement has been entered into with a counterparty other than the Administrative Agent, such Rate
Management Agreement shall not constitute a Loan Document), any and all documents, instruments or
agreements executed and delivered to evidence, secure or in connection with all Letters of Credit,
the Fee Letter, the UCC-1 financing statements to be filed against Borrower, the UCC-1 fixture
filing to be recorded against the Real Property and every other document now or hereafter
evidencing, securing or otherwise executed



24









 




in conjunction with the Loans, together with all amendments, restatements, supplements and
modifications thereof.




     “Loan Expenses” shall mean, collectively, the expenses, charges, costs (including both hard
costs and soft costs) and fees relating to the making, administration, negotiation, documentation
or any other aspect of the Loans or relating to the performance of the Work, including, without
limitation, Administrative Agent’s and Lenders’ reasonable attorneys’ fees and costs in connection
with the negotiation, documentation and enforcement of the Loans, the fees of the Consultant, all
recording fees and charges, title insurance charges and premiums, escrow fees, fees of insurance
consultants, costs of surveys and of other bonds required by the Title Company in connection with
clearing title to the Real Property or the issuance of title reports, binders, policies and the
like, and all other costs, expenses, charges and fees referred to in or necessitated by the terms
of this Agreement or any of the other Loan Documents, provided, however, so long as no Unmatured
Default or Event of Default has occurred and remains outstanding, the Loan Expenses shall only
consist of those amounts incurred on behalf of the Administrative Agent.



     “Loan Opening Date” shall mean November 19, 2010.



     “Material Adverse Occurrence” shall mean an occurrence of any nature (including any adverse
determination in any litigation, arbitration or governmental investigation or proceeding) which
materially adversely affects the financial condition or operations of Borrower and/or any
Guarantor, with respect to any Project or materially impairs the ability of Borrower and/or any
Guarantor to perform its obligations under the Loan Documents or the ability of Administrative
Agent or any Lender to enforce its rights or remedies under the Loan Documents.



     “Material Subcontract” shall mean any Subcontract in excess of One Hundred Fifty Thousand
Dollars ($150,000.00).



     “Maturity Date” shall mean the Initial Maturity Date or the Extended Maturity Date, as
applicable and as they may be earlier terminated or extended in accordance with the terms of this
Agreement.



     “Mortgage” shall mean, individually and collectively, the Ames Mortgage, the Fort Collins Deed
of Trust, the Fort Wayne Mortgage, and the Clarksville Deed of Trust.



     “Net Operating Income” shall mean a Project’s Gross Revenues minus a Project’s Operating
Expenses.



     “Non-Consenting Lender” has the meaning ascribed to such term in Section 10.12(g) of
this Agreement.



     “Note” or “Notes” shall mean the Promissory Note or Promissory Notes evidencing the Loans by
Borrower payable to the order of each Lender in the maximum principal amount of such Lender’s
Commitment, as the same may be amended, restated, modified or supplemented and in effect from time
to time.



25









 





     “Notional Interest Rate” shall mean a rate of interest equal to the greater of (i) the
interest rate of seven and one half of one percent (7.5%) per annum or (ii) the aggregate per annum
rate equal to the Treasury Rate plus three percent (3.0%) per annum.



     “Obligations” means, individually and collectively: (a) the aggregate Principal Balance of,
and all accrued and unpaid interest on, all Loans; (b) the Letter of Credit Obligations; (c) all
Rate Management Obligations; and (d) all other indebtedness, liabilities, obligations, covenants
and duties of Borrower and the other Obligors owing to Administrative Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the fees and indemnification obligations, whether direct
or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.



     “Obligors” shall mean any Person now or hereafter primarily or secondarily obligated to pay
all or any part of the Obligations, including, without limitation, Borrower and the Guarantors.



     “OFAC” has the meaning ascribed to such term in Section 7.21 of this Agreement.



     “Operating Expenses” shall mean the pro forma expenditures of all kinds for the applicable
Calculation Period, calculated on an annualized basis, made with respect to the operation of a
Property in the normal course of business including, but not limited to, expenditures for taxes
(assuming the full assessment of each Property), insurance, repairs, replacements, maintenance,
rent due in connection with the Fort Collins Ground Lease, management fees (such management fees to
be in an amount equal to the greater of (a) the actual fees due in connection with the applicable
Property Management Contract or (b) three percent (3.0%) per annum of the Gross Revenues of such
Property), salaries, advertising expenses, professional fees, wages and utility costs, amounts
payable with respect to applicable Property under or with respect to any title exceptions permitted
by Administrative Agent and reasonable additions to, or creations of, reserves for repairs and
replacements and for capital expenditures (such reserves for capital expenditures to be in an
amount of not less than One Hundred Twenty-Five Dollars ($125.00) per room per annum) and those
required to comply with Applicable Law or Leases or amendments thereto; but expressly excluding:
(a) any debt service on the Notes, (b) expenditures made out of reserves previously created; (c)
leasing commissions; and (d) non-cash charges, specifically including depreciation.



     “Owner” has the meaning ascribed to that term in Section 7.18 of this Agreement.



     “Participant” has the meaning ascribed to such term in Section 10.11(b) of this
Agreement.



     “Payment and Completion Guarantor” shall mean Campus Crest Communities, Inc., a Maryland
corporation.



     “Payment and Completion Guaranty” shall mean that certain Guaranty of Payment and Completion
dated as of even date herewith from the Payment and Completion Guarantor in favor of Administrative
Agent for the benefit of the Lenders, as the same may be amended, restated, modified or
supplemented and in effect from time to time.



26









 





     “Permitted Exceptions” shall mean, individually and collectively, the Ames Permitted
Exceptions, the Clarksville Permitted Exceptions, the Fort Collins Permitted Exceptions, and the
Fort Wayne Permitted Exceptions.



     “Permitted Transfer” shall mean any sale, assignment, transfer, hypothecation, encumbrance, or
grant of any membership interest, partnership interest or stock in any entity which controls,
directly or indirectly, any Borrower, so long as, following such transaction, (i) Limited Guarantor
continues to be the sole member of each Property Borrower; (ii) Lead Borrower continues to be the
indirect owner of all of the membership interests in each Property Borrower; (iii) Payment and
Completion Guarantor continues to own at least fifty-one percent (51%) of the interests of Lead
Borrower; and (iv) Payment and Completion Guarantor continues to hold voting control over Lead
Borrower.



     “Person” shall mean any individual, firm, corporation, business enterprise, trust,
association, joint venture, partnership, governmental body or other entity, whether acting in an
individual, fiduciary or other capacity.



     “Personal Property” shall mean, individually and collectively, the Ames Personal Property, the
Fort Collins Personal Property, the Fort Wayne Personal Property and the Clarksville Personal
Property.



     “Plans and Specifications” shall mean, individually and collectively, the Ames Plans and
Specifications, the Fort Collins Plans and Specifications, the Fort Wayne Plans and Specifications
and the Clarksville Plans and Specifications.



     “Pledge Agreement” shall mean that certain Ownership Interests Pledge and Security Agreement
dated as of even date herewith made by the Limited Guarantor in favor of Administrative Agent for
the benefit of the Lenders, which agreement shall pledge all of the membership interests of the
Property Borrowers to Administrative Agent for the benefit of the Lenders, as amended, modified, or
restated from time to time.



     “Post-Foreclosure Plan” shall have the meaning ascribed to such term in Section
10.13(a) of this Agreement.



     “Prime Rate” shall mean an annual rate of interest equal to the prime rate as announced from
time to time by Administrative Agent or its parent (which is not necessarily the lowest rate
charged to any customer), adjusted and changing immediately when and as said prime rate changes.



     “Principal Balance” shall mean the unpaid principal balance of the Loans outstanding from time
to time.



     “Principal Office” shall mean 120 South LaSalle Street, Chicago, Illinois 60603.



     “Project” shall mean, individually and collectively, the Ames Project, the Fort Collins
Project, the Fort Wayne Project and the Clarksville Project.



27









 





     “Project Costs” shall mean, collectively, the Ames Project Costs, the Fort Collins Project
Costs, the Fort Wayne Project Costs and the Clarksville Project Costs.



     “Project Prepayment Ceiling” shall mean an amount no greater than Two Hundred Thousand Dollars
($200,000.00) per Project.



     “Project Tranche” has the meaning ascribed to such term in Section 3.1(g) of this
Agreement.



     “Property” shall mean, individually and collectively, the Ames Property, the Fort Collins
Property, the Fort Wayne Property and the Clarksville Property.



     “Property Borrowers” shall mean, individually and collectively, Ames Borrower, Clarksville
Borrower, Fort Collins Borrower, and Fort Wayne Borrower.



     “Property Management Contract” shall mean, individually and collectively, the Ames Property
Management Contract, the Fort Collins Property Management Contract, the Fort Wayne Property
Management Contract and the Clarksville Property Management Contract.



     “Property Manager” shall mean The Grove Student Properties, LLC, who shall serve as the
property manager for the Property in connection with the terms of the Property Management Contract.



     “Purchase Notice” has the meaning ascribed to such term in Section 3.7(b) of this
Agreement.



     “Purchasing Party” has the meaning ascribed to such term in Section 10.12(g) of this
Agreement.



     “Rate Management Agreement” shall mean any agreement, device or arrangement providing for
payments which are related to fluctuations of interest rates, exchange rates, forward rates, or
equity prices, including, but not limited to dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants, and any agreement
pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps,
floors, collars and forwards), including, without limitation, any ISDA Master Agreement, between
Borrower and a financial institution selected by Borrower, and any schedules, confirmations and
documents and other confirming evidence between the parties confirming transactions thereunder, all
whether now existing or hereafter arising, and in each case as the same may be amended, restated,
modified or supplemented and in effect from time to time.



     “Rate Management Obligations” shall mean any and all obligations of Borrower to Administrative
Agent or any Affiliate of Administrative Agent, whether absolute, contingent or otherwise and
howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefore), under
or in connection with (i) any Rate Management Agreements entered into by and between the Borrower
and Administrative Agent or any Affiliate of Administrative Agent, and



28









 




(ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate
Management Agreement by and between the Borrower and Administrative Agent or any Affiliate of
Administrative Agent, provided however, such obligations shall not include any obligations of the
Borrower under any Rate Management Agreement which is not entered into by and between the Borrower
and Administrative Agent or any Affiliate of Administrative Agent.




     “Real Property” shall mean, individually and collectively, the Ames Real Property, the Fort
Collins Real Property, the Fort Wayne Real Property, and the Clarksville Real Property.



     “Register” has the meaning ascribed to such term in Section 10.11(d) of this
Agreement.



     “Regulatory Change” shall mean, with respect to any Lender, any change in Applicable Law
effective after the date hereof (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy.



     “Requisite Lenders” shall mean, as of any date, Lenders whose aggregate Commitment Percentage
equals or exceeds sixty-six and two thirds of one percent (66 2/3%) (excluding Defaulting Lenders
who, accordingly, are not entitled to vote) (taking into account funded participations in Letter of
Credit Obligations), or if the Commitments (or any part thereof) are no longer in effect, Lenders
holding at least sixty-six and two thirds of one percent (66 2/3%) of the aggregate outstanding
principal amount of the Loans (excluding Defaulting Lenders who, accordingly, are not entitled to
vote) (taking into account funded participations in Letter of Credit Obligations).



     “Retainage” shall mean the portion of each Loan Advance retained by Administrative Agent in
accordance with Section 5.2 of this Agreement.



     “Signing Entity” shall mean any entity (other than Borrower itself) that appears in the
signature block of Borrower in any Loan Document, if any.



     “State” shall mean the applicable state in which the applicable Real Property is located.



     “Subcontractor” shall mean any person or entity having a contract with Contractor or any
Subcontractor for the construction, equipping or supplying by such Subcontractor of any portion of
the Project.


     “Subcontracts” shall mean all subcontracts now or hereafter entered into by the Contractor or
Borrower for the construction of any of the Improvements or the installation of any of the Personal
Property or the performance of any other aspect of the Work, together with all sub-subcontracts,
material or equipment purchase orders, equipment leases and other agreements entered into by the
Contractor, any Subcontractor or any other party supplying labor or materials in connection with
the Work.





29











 





     “Survey” shall mean the plat of survey of the Real Property as described in Section
4.2 of this Agreement.



     “Taking” has the meaning ascribed to such term in Section 10.10 of this Agreement.



     “Taxes” has the meaning ascribed to such term in Section 3.8 of this Agreement.



     “Tenant” shall mean each tenant hereafter occupying space at the Real Property pursuant to a
Lease.



     “Title Company” shall mean Chicago Title Insurance Company.



     “Title Policy” shall mean each title insurance policy described in Section 4.4 of this
Agreement.



     “Treasury Rate” shall mean the yield (converted as necessary to an annual interest rate) on
the United States Treasury Security (as hereinafter defined) having a maturity date closest to ten
(10) years from the Determination Date as displayed in the Bloomberg Financial Markets system at
approximately 8:00 a.m. Chicago, Illinois time on the second (2nd) Business Day preceding the
Determination Date, provided, however, if the Bloomberg Financial Markets system is no longer
available, Administrative Agent, in its sole discretion, shall designate another daily financial or
governmental news service or publication of national circulation to be used to determine such yield
and/or such spread. As used herein “United States Treasury Security” shall mean any actively
traded United States Treasury bond, bill or note, and if more than one issue of United States
Treasury Security is scheduled to mature on or about ten (10) years from the Determination Date
then to the extent possible, the United States Treasury Security maturing closest and prior to the
tenth (10th) anniversary of the Determination Date will be chosen as the basis of the
yield.



     “Type” shall mean with respect to any Loan, refers to whether such Loan is a LIBOR Loan or
Base Rate Loan.



     “Unmatured Default” shall mean an event or circumstance that with the giving of notice, the
passage of time, or both, would constitute an Event of Default.



     “Work” shall mean the performance of all work to be performed and the supplying of all
materials to be supplied in connection with the building, furnishing, fixturing and equipping of
any Project, all in accordance with the provisions of this Agreement and with the applicable Plans
and Specifications, the applicable Budget and the other documentation approved by Lender.



SECTION 3.

LOAN TERMS




     3.1 Commitments, Loans and Notes.




     (a) Generally. Subject to the terms and conditions hereof, each Lender
severally and not jointly agrees to make Loans to Borrower in an aggregate principal



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amount at any one time outstanding up to, but not exceeding, the amount of such Lender’s
Commitment less the Letter of Credit Obligations; provided that, the Lenders
shall not be required to disburse any Loan Advances at any time that a Project Tranche is
not In Balance or if the requested disbursement would cause a Project Tranche to not be In
Balance. Borrower shall request and Lenders shall be required to make, subject to the
terms and conditions provided herein, disbursements of the Loan not more frequently than
once each calendar month (except that for up to three (3) months during the period prior
to the Construction Completion Date, Borrower may submit twice monthly disbursements of
the Loan). Administrative Agent, on account of the Lenders, may at any time take such
action as it deems appropriate to verify that the conditions precedent to each
disbursement have been satisfied, including, without limitation, verification of any
amounts due under the Construction Contract or any Subcontract. Borrower agrees to
cooperate with Administrative Agent in any such action. If in the course of any such
verification, any amount shown on any contract or Subcontract entered into for the
performance of any portion of the Work, or any application for payment, sworn statement or
waiver of lien is subject to a possible discrepancy, Borrower shall resolve such
discrepancy to Administrative Agent’s satisfaction prior to any disbursements being made.
Borrower hereby authorizes Administrative Agent to make Loan Advances directly to itself
or the Lenders, as applicable, for payment and reimbursement of all Loan Expenses incurred
by the Lenders and Administrative Agent in connection with the Loans if Borrower has
failed to pay such Loan Expenses as required hereunder. Notwithstanding anything to the
contrary contained herein, upon the date upon which the requirements set forth in
Section 5.6 have been satisfied as to each Project and the final Retainage for
each Project has been released by the Administrative Agent, any remaining Commitments
shall reduce to zero (0).




     (b) Intentionally Omitted.




     (c) Notes. The Loans made by each Lender shall be evidenced by certain
Promissory Notes of Borrower, each substantially in the form of Exhibit B hereto,
with appropriate insertions therein as to payee, date and principal amount, payable to the
order of such Lender. The date, amount and type of each advance and payment or prepayment
of principal with respect thereto, each Continuation thereof, and, in the case of LIBOR
Rate Loans, the length of each Interest Period with respect thereto, shall be recorded by
each Lender on its books and (prior to any transfer of its Note or, at the discretion of
each Lender, at any other time) endorsed by each Lender, on the schedules annexed to and
constituting a part of its Note. Each such recordation, to the extent consistent with the
determination of Administrative Agent, shall constitute prima facie evidence of the
accuracy of the information so recorded in the absence of manifest error. The Note of
each Lender shall (i) be dated the date hereof or, if a Lender’s interest is hereafter
assigned, the effective date of such assignment, (ii) be stated to mature on the Maturity
Date, and (iii) provide for the payment of principal and interest in accordance with
Section 3.3 hereof.




     (d) Commitments Several. The failure of any Lender to make a requested Loan
on any date shall not relieve any other Lender of its obligation (if any) to make a



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Loan on such date, but no Lender shall be responsible for the failure of any other Lender
to make any Loan to be made by such other Lender.




     (e) Fees. Lenders have fully earned a non-refundable arrangement fee in the
amount set forth in the Fee Letter and a non-refundable upfront fee in the amount set
forth in the Fee Letter.




     (f) Letters of Credit. The Commitments may be used for the issuance of
Letters of Credit in accordance with the terms of and to the extent set forth in
Exhibit G attached hereto.




     (g) Tranche Amounts. The Loans shall consist of four (4) tranches. The
first tranche (“Ames Tranche”) shall be in the amount of up to Twelve Million Eight
Hundred Forty-Six Thousand Three Hundred Thirty-Seven Dollars ($12,846,337.00) and
shall be disbursed to Ames Borrower in accordance with the Ames Budget and the terms and
conditions set forth herein. In no event shall the Lenders be obligated to fund more than
the Ames Tranche for Work to be done in connection with the Ames Project. The second
tranche (“Clarksville Tranche”) shall be in the amount of up to Twelve Million Seven
Hundred Twenty-One Thousand Five Hundred Fourteen Dollars ($12,721,514.00) and shall be
disbursed to Clarksville Borrower in accordance with the Clarksville Budget and the terms
and conditions set forth herein. In no event shall the Lenders be obligated to fund more
than the Clarksville Tranche for Work to be done in connection with the Clarksville
Project. The third tranche (“Fort Collins Tranche”) shall be in the amount of up to
Fifteen Million Two Hundred Twenty-Seven Thousand Eight Hundred Seventy-Five Dollars
($15,227,875.00) and shall be disbursed to Fort Collins Borrower in accordance with the
Fort Collins Budget and the terms and conditions set forth herein. In no event shall the
Lenders be obligated to fund more than the Fort Collins Tranche for Work to be done in
connection with the Fort Collins Project. The fourth tranche (“Fort Wayne Tranche”;
together with Ames Tranche, Clarksville Tranche, and Fort Collins Tranche, each
individually and collectively a “Project Tranche”) shall be in the amount of up to Eleven
Million Nine Hundred Fifty-Five Thousand Three Hundred Ninety-Seven Dollars
($11,955,397.00) and shall be disbursed to Fort Wayne Borrower in accordance with the Fort
Wayne Budget and the terms and conditions set forth herein. In no event shall the Lenders
be obligated to fund more than the Fort Wayne Tranche for Work to be done in connection
with the Fort Wayne Project.




Notwithstanding anything to the contrary contained herein, Borrower shall, subject to
Administrative Agent’s reasonable approval, including, without limitation, the review of
the Consultant at Borrower’s sole cost and expenses, have the right to reallocate an
aggregate amount of up to Five Hundred Thousand Dollars ($500,000.00) from one Project
Tranche to one or more Project Tranches, provided however, any such reallocation shall not
increase the Commitments or the aggregate amount of the Loans.



     3.2 Interest Rates, Late Charges.



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     (a) Interest Rate. Borrower promises to pay to Administrative Agent, for the
account of each Lender, interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan, to (but
excluding) the date such Loan shall be paid in full, at the Adjusted LIBOR Rate for such
Loan for the Interest Period therefor, subject to Section 3.2(b), Section
3.9(a), Section 3.9(b) and Section 3.9(c) hereof.




     (b) Default Rate. Upon the occurrence of an Event of Default under this
Agreement or any of the other Loan Documents, and after the Maturity Date or following the
acceleration of the maturity of the Loans, Administrative Agent, at its option, may, if
permitted under Applicable Law, do one or both of the following: (a) increase the rate of
interest on the Principal Balance and any other amounts then owing by Borrower to
Administrative Agent or Lenders to the Default Rate until paid in full and (b) add any
unpaid accrued interest to principal and such sum shall bear interest therefrom until paid
in full at the Default Rate.




     (c) Late Charge. If any payment under this Agreement or any other Loan
Document is not made within five (5) days after such payment is due (except for any
principal payment due on the Maturity Date), then, in addition to the payment of the
amount so due, Borrower shall pay to Administrative Agent for the account of Lenders a
“late charge” equal to five percent (5.0%) of the amount of that payment. This late
charge may be assessed without notice, shall be immediately due and payable and shall be
in addition to all other rights and remedies available to Administrative Agent. Borrower
agrees that the damages to be sustained by the Lenders for the detriment caused by any
late payment are extremely difficult and impractical to ascertain, and that the amount of
five cents ($0.05) for each one dollar due is a reasonable estimate of such damages, does
not constitute interest, and is not a penalty.




     (d) Number of Interest Periods. There may be no more than four (4) different
Interest Periods for LIBOR Rate Loans outstanding at the same time.




     (e) Computations. Unless otherwise expressly set forth herein, any accrued
interest on any Loan, any fees or any other Obligations due hereunder shall be computed on
the basis of a year of three hundred sixty (360) days and the actual number of days
elapsed.




     (f) Initial Interest Period. Borrower shall select an Interest Period for
each LIBOR Rate Loan not later than 11:00 a.m. on the second (2nd) Business Day
prior to the proposed commencement of such LIBOR Rate Loan. Such notice by Borrower of
its selection shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a written notice of its selection, specifying (i) the proposed
date of such proposed commencement of such LIBOR Rate Loan, and (ii) the duration of the
selected Interest Period, all of which shall be specified in such manner as is necessary
to comply with all limitations on Loans outstanding hereunder. Each notice of its
selection shall be irrevocable by and binding on Borrower once given. Promptly
after receipt of a notice of its selection, Administrative Agent shall notify each
applicable Lender by telecopy, or other similar form of transmission, of the proposed



33









 






selection. If Borrower fails to timely select such Interest Period as aforesaid, the
Interest Period shall be a one-month Interest Period.




     (g) Continuation. So long as no Unmatured Default or Event of Default shall
have occurred and be continuing, Borrower shall maintain such LIBOR Rate Loan as a LIBOR
Rate Loan by selecting a new Interest Period for such LIBOR Rate Loan. Each new Interest
Period selected under this Section 3.2(g) shall commence on the last day of the
immediately preceding Interest Period. Each selection of a new Interest Period shall be
made by Borrower giving to Administrative Agent a written notice of Continuation not later
than 11:00 a.m. on the second (2nd) Business Day prior to the date of any such
Continuation. Such notice by Borrower of a Continuation shall be by telephone or
telecopy, confirmed immediately in writing if by telephone, in the form of a written
notice of Continuation, specifying (i) the proposed date of such Continuation, (ii) the
LIBOR Rate Loans subject to such Continuation and (iii) the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary to comply
with all limitations on Loans outstanding hereunder. Each notice of Continuation shall be
irrevocable by and binding on Borrower once given. Promptly after receipt of a notice of
Continuation, Administrative Agent shall notify each applicable Lender by telecopy, or
other similar form of transmission, of the proposed Continuation. If Borrower shall fail
to select in a timely manner a new Interest Period for any such LIBOR Rate Loan in
accordance with this Section 3.2(g), such Loan will automatically, on the last day
of the current Interest Period therefor, continue as a LIBOR Rate Loan with the Interest
Period previously selected by Borrower for such Loan. If an Unmatured Default or Event of
Default shall have occurred and be continuing, such LIBOR Rate Loan will automatically, on
the last day of the current Interest Period therefor, continue as a LIBOR Rate Loan with a
one-month Interest Period.




     (h) Usury. In no event shall the amount of interest due or payable on the
Loans or other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by Borrower or received by any Lender, then such excess
sum shall be credited as a payment of principal, unless Borrower shall notify the
respective Lender in writing that Borrower elects to have such excess sum returned to it
forthwith. It is the express intent of the parties hereto that Borrower not pay and the
Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess
of that which may be lawfully paid by Borrower under Applicable Law. Borrower agrees to
the effective rate of interest provided herein plus any additional rate of interest
resulting from any other charges in the nature of interest paid or to be paid by Borrower
in connection with the Notes or this Agreement.




     (i) Agreement Regarding Interest and Charges. The parties hereto hereby
agree and stipulate that the only charge imposed upon Borrower for the use of money in
connection with this Agreement is and shall be the interest specifically described in
Section 3.2(a) and Section 3.3(a). Notwithstanding the foregoing, the
parties hereto further agree and stipulate that all agency fees, syndication fees,
arrangement fees, amendment fees, up-front fees, commitment fees, facility fees, unused
fee, exit fees, closing fees, letter of credit fees, underwriting fees, default charges,
late charges,



34









 






funding or “breakage” charges, increased cost charges, attorneys’ fees and reimbursement
for costs and expenses paid by Administrative Agent or any Lender to third parties or for
damages incurred by Administrative Agent or any Lender, or any other similar amounts are
charges made to compensate Administrative Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be performed or
incurred, by Administrative Agent and the Lenders in connection with this Agreement and
shall under no circumstances be deemed to be charges for the use of money. Any use by
Borrower of certificates of deposit issued by any Lender or other accounts maintained with
any Lender has been and shall be voluntary on the part of Borrower. All charges other
than charges for the use of money shall be fully earned and nonrefundable when due.



     3.3 Payments.




     (a) Payments of Interest. Commencing January 1, 2011 and on the first
(1st) day of each calendar month thereafter, Borrower shall pay accrued
interest on each Loan in arrears. In addition, upon the payment, prepayment or
Continuation of such Loan, Borrower shall pay accrued interest on the principal amount so
paid, prepaid, or Continued. Interest payable at the Default Rate shall be payable from
time to time on demand. Promptly after the determination of any interest rate provided
for herein or any change therein, Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to Borrower. All determinations by
Administrative Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and Borrower for all purposes, absent manifest error (that is an obvious
mathematical error).




     (b) Principal Payments. In addition to the interest payments required to be
made pursuant to Section 3.3(a) above, commencing on November 1, 2012 and on the
first day of each month thereafter through and including the month in which the Maturity
Date occurs, Borrower shall make monthly payments of principal in the amounts set forth on
Schedule 3.3(b) attached hereto and incorporated herein.




     (c) Repayment of Loans. Borrower shall repay the entire outstanding
principal amount of, and all accrued but unpaid interest on, the Loans, together with all
other amounts then outstanding under this Agreement, on the Maturity Date.



     3.4 Prepayments.




     (a) Optional. Subject to Section 3.9(d), Borrower may prepay any
Loan at any time without premium or penalty. Borrower shall give Administrative Agent at
least ten (10) days prior written notice of the prepayment of any Loan. Prepayments shall
be accompanied by the payment of all accrued interest on the amount so prepaid and, in the
case of prepayments of each LIBOR Rate Loan, by the amounts set forth in Section
3.9(a)(i) and Section 3.9(d).




     (b) Mandatory. If at any time the aggregate principal amount of all
outstanding Loans, exceeds the amount of the total Commitment in effect at such time,



35









 






Borrower shall immediately pay to Administrative Agent for the accounts of the Lenders the
amount of such excess. Such payment shall be applied by Administrative Agent to pay all
amounts of principal outstanding on the Loans. If Borrower is required to pay any
outstanding LIBOR Rate Loans by reason of this Section 3.4(b) prior to the end of
the applicable Interest Period therefor, Borrower shall pay all amounts due under
Section 3.9(d).




     (c) Out of Balance Payments. If Administrative Agent deems any Project
Tranche to not be In Balance, Borrower shall, within five (5) Business Days after written
request by Administrative Agent, deposit into an account maintained by Administrative
Agent (and hereby pledged to Administrative Agent for the benefit of the Lenders as
additional security for the Loans) an amount equal to the amount Administrative Agent
determines would be required to be repaid in order for the applicable Project Tranche to
be In Balance; provided that if the Work for the applicable Project has been completed,
Borrower shall prepay the Loan rather than make such deposit. The sums thus deposited
with Administrative Agent will be disbursed by Administrative Agent to complete the Work
for the applicable Project prior to any further disbursement of any Loan proceeds. No
interest shall be payable to Borrower on the amounts so deposited pursuant to this
subparagraph. Notwithstanding anything to the contrary contained in this Section
3.4(c), in the event that Borrower is required to deposit and does actually deposit
funds with Administrative Agent in order for a Project Tranche to be In Balance and the
applicable Project is thereafter completed in accordance with the terms of Section
5.6(b) and subsequent savings occur in the cost of the Work for such Project which,
had they occurred prior to the deposit required under this Section 3.4(c), the
Project Tranche would have been In Balance and no deposit would have been required,
Borrower shall be entitled to a reimbursement in the amount of such savings which were
deposited with the Administrative Agent in accordance with the terms of this Section
3.4(c).



     3.5 Extension of Maturity Date.




     (a) Extension Option. Borrower shall have the option (the “Extension
Option”) to extend the Initial Maturity Date to the Extended Maturity Date upon
satisfaction of the following conditions precedent which must be satisfied prior to the
Initial Maturity Date:




     (i) Extension Request. Borrower shall deliver written notice of such
request (the “Extension Request”) to Administrative Agent not earlier than the date
which is ninety (90) days prior to the Initial Maturity Date and not later than the
date which is sixty (60) days prior to the Initial Maturity Date;




     (ii) Payment of the Extension Fee. Borrower shall pay to
Administrative Agent an extension fee for such extension, in an amount equal to one
half of one percent (0.50%) of the Principal Balance as of the Initial Maturity
Date;



36









 






     (iii) No Default. On the date the Extension Request is submitted and
on the Initial Maturity Date, there shall exist no Unmatured Default or Event of
Default;




     (iv) DSCR. Based on a Determination Date of September 1, 2013, each
Project has achieved an Implied Debt Service Coverage Ratio of not less than 1.40 to
1.0. In order to evidence the satisfaction of such Implied Debt Service Coverage
Ratio, Borrower shall deliver to Administrative Agent, an executed Debt Service
Coverage Test for each Project on the form attached hereto as Exhibit I and
certified by the Borrower as true, correct and complete and as fairly and accurately
presenting the information contained therein. In the event this Debt Service
Coverage Ratio is not met, Borrower may satisfy this Debt Service Coverage Ratio
prior to the Initial Maturity Date by making a payment of principal on the Loans in
an amount sufficient to bring this Debt Service Coverage Ratio into compliance, as
determined by the Administrative Agent in its sole discretion;




     (v) Completion of Project. At the time of the Extension Request, the
lien-free full completion of the Work and the construction of each of the
Improvements shall have been completed in a manner acceptable to Administrative
Agent acting in good faith, in accordance with the Loan Documents and each
Construction Schedule, and substantially in accordance with each of the Plans and
Specifications. For the purposes of this provision, the completion of the Work and
the construction of the Improvements shall be deemed to occur only at such time as
Administrative Agent has received the following (A) certificate of completion from
the Contractor attesting to final completion of the Work, (B) final, unconditional
certificates of occupancy for each Property, and (C) construction date-down and
interim mechanics’ lien endorsements to each Title Policy;




     (vi) Financial Statements. Borrower shall have delivered current
financial statements regarding Borrower and the Payment and Completion Guarantor
(dated not earlier than ninety (90) days prior to the Extension Request) and all
other financial statements and other information as may be required under the Loan
Documents regarding Borrower, the Payment and Completion Guarantor and the Property,
shall have been submitted promptly to Administrative Agent, and there shall not have
occurred, in the opinion of Administrative Agent, any event or condition which could
constitute a Material Adverse Occurrence in the business or financial condition of
Borrower or any Guarantor or in the Property from that which existed on the date of
this Agreement;




     (vii) Costs and Expenses. Whether or not the extension becomes
effective, Borrower shall pay all out-of-pocket costs and expenses incurred by
Administrative Agent and the Lenders in connection with the proposed extension (pre-
and post-closing), including, without limitation, legal fees; all such costs and
expenses incurred up to the time of Administrative Agent’s written agreement to the
extension shall be due and payable prior to Administrative Agent’s execution



37









 






of that agreement (or if the proposed extension does not become effective, then upon
demand by Administrative Agent), and any future failure to pay such amounts shall
constitute an Event of Default under the Loan Documents;




     (viii) Guarantor’s Compliance Certificate. Borrower shall have
delivered a Guarantor’s Compliance Certificate as required in accordance with the
terms of the Payment and Completion Guaranty evidencing the Payment and Completion
Guarantor’s compliance with the Payment and Completion Guarantor’s financial
covenants set forth therein;




     (ix) Regulatory Requirements. All applicable regulatory requirements,
including appraisal requirements, shall have been satisfied with respect to the
extension; and




     (x) Additional Documents; Searches. Not later than the Initial
Maturity Date, (A) the extension shall have been documented to Administrative
Agent’s satisfaction by Borrower, each Guarantor, Administrative Agent, and all
other parties deemed necessary by Administrative Agent; and (B) Administrative Agent
shall have been provided with an updated title report and judgment and lien
searches, and appropriate title insurance endorsements shall have been issued as
required by Administrative Agent.



     3.6 Payments, Fees and Other General Provisions.




     (a) Payments by Borrower. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Administrative Agent at its
Principal Office, not later than 11:00 a.m. on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day). Subject to Section 3.6(b) and
Section 3.6(d), Administrative Agent on behalf of the Lenders, may (but shall not
be obligated to) debit the amount of any such payment which is not made by such time from
any special or general deposit account of Borrower with Administrative Agent. Borrower
shall, at the time of making each payment under this Agreement, specify to Administrative
Agent the amounts payable by Borrower hereunder to which such payment is to be applied.
Each payment received by Administrative Agent for the account of a Lender under this
Agreement or any Note shall be paid to such Lender as provided by separate wiring
instructions from such Lender no later than one (1) Business Day after receipt. If
Administrative Agent fails to pay such amount to a Lender as provided in the previous
sentence, Administrative Agent shall pay interest on such amount until paid at a rate per
annum equal to the Federal Funds Rate from time to time in effect. If the due date of any
payment under this Agreement or any other Loan Document would otherwise fall on a day
which is not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall be payable for the period of such extension. If a court of
competent jurisdiction shall adjudge that any amount received and distributed by
Administrative Agent is to be repaid, each Person



38









 






to whom any such distribution shall have been made shall either repay to Administrative
Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.




     (b) Pro Rata Treatment. Except to the extent otherwise provided herein: (i)
each borrowing from the Lenders under Section 3.1 shall be made from the Lenders,
each payment of the fees under Section 3.1(e) shall be made for the account of the
Lenders, pro rata according to the amounts of their respective Commitments; (ii) each
payment or prepayment of principal of Loans by Borrower shall be made for the account of
the Lenders pro rata in accordance with the respective unpaid principal amounts of the
Loans held by them, provided that if immediately prior to giving effect to any such
payment in respect of any Loans the outstanding principal amount of the Loans shall not be
held by the Lenders pro rata in accordance with their respective Commitments in effect at
the time such Loans were made, then such payment shall be applied to the Loans in such
manner as shall result, as nearly as is practicable, in the outstanding principal amount
of the Loans being held by the Lenders pro rata in accordance with their respective
Commitments; (iii) each payment of interest on Loans by Borrower shall be made for the
account of the Lenders pro rata in accordance with the amount of interest on such Loans
then due and payable to the respective Lenders; (iv) the making and Continuation of Loans
of a particular Type (other than Conversions provided for by Section 3.9(f)) shall
be made pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in the case of
Continuations of Loans) and the then current Interest Period for each Lender’s portion of
each Loan of such Type shall be coterminous; and (v) the Lenders’ participation in, and
payment obligations in respect of, Loans under Section 3.1, shall be in accordance
with their respective Commitments. All payments of principal, interest, fees and other
amounts in respect of the Loans shall be for the account of the Lenders.




     (c) Advances by Administrative Agent. Unless Administrative Agent shall have
been notified by any Lender prior to the specified date of borrowing that such Lender does
not intend to make available to Administrative Agent the Loan to be made by such Lender on
such date, Administrative Agent may assume that such Lender will make the proceeds of such
Loan available to Administrative Agent on the date of the requested borrowing and
Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to Borrower the amount of such Loan to be provided by such
Lender and such Lender shall be liable to Administrative Agent for the amount of such
advance. If such Lender does not pay such corresponding amount upon Administrative
Agent’s demand therefor, Administrative Agent will promptly notify Borrower, and Borrower
shall promptly pay such corresponding amount to Administrative Agent. Administrative
Agent shall also be entitled to recover from the Lender or Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by Administrative Agent to Borrower to the date
such corresponding amount is recovered by Administrative Agent at a per annum rate equal
to (i) from Borrower at the applicable rate for such Loan as provided in Section
3.2 or (ii) from a Lender at the



39









 






Federal Funds Rate. Subject to the terms of this Agreement, Borrower does not waive any
claim that it may have against a Defaulting Lender.




     (d) Sharing of Payments, Etc. If a Lender shall obtain payment of any
principal of, or interest on, any Loan made by it to Borrower under this Agreement, or
shall obtain payment on any other Obligation owing by Borrower through the exercise of any
right of set-off, banker’s lien or counterclaim or similar right or otherwise or through
voluntary prepayments directly to a Lender or other payments made by Borrower to a Lender
not in accordance with the terms of this Agreement and such payment should be distributed
to some or all of the Lenders pro rata in accordance with Section 3.6(b), such
Lender shall promptly purchase from the other applicable Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made by such
other Lenders or other Obligations owed to such other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable, to the end that all the
applicable Lenders shall share the benefit of such payment (net of any reasonable expenses
which may be incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with Section 3.6(b). To such end, all the applicable Lenders shall
make appropriate adjustments among themselves (by the resale of participations sold or
otherwise) if such payment is rescinded or must otherwise be restored. Borrower agrees
that any Lender so purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off, banker’s lien,
counterclaim or similar rights with respect to such participation as fully as if such
Lender were a direct holder of Loans in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of Borrower.




     (e) Several Obligations. No Lender shall be responsible for the failure of
any other Lender to make a Loan or to perform any other obligation to be made or performed
by such other Lender hereunder, and the failure of any Lender to make a Loan or to perform
any other obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other obligation to be
made or performed by such other Lender.



     3.7 Defaulting Lenders.




     (a) Generally. If for any reason any Lender (a “Defaulting Lender”) shall
fail or refuse to perform any of its obligations under this Agreement or any other Loan
Document to which it is a party within the time period specified for performance of such
obligation or, if no time period is specified, if such failure or refusal continues for a
period of two (2) Business Days after notice from Administrative Agent, then, in addition
to the rights and remedies that may be available to Administrative Agent, Borrower or
Lenders under this Agreement or Applicable Law, such Defaulting Lender’s right to
participate in the administration of the Loans, this Agreement and the other Loan
Documents, including without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of Administrative Agent or to be taken into



40









 






account in the calculation of all of the Lenders or the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If a Lender is a Defaulting
Lender because it has failed to make timely payment to Administrative Agent of any amount
required to be paid to Administrative Agent hereunder, in addition to the other rights and
remedies which Administrative Agent, Borrower or Lenders may have under the immediately
preceding provisions or otherwise, Administrative Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period from the
date on which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the
defaulted payment and any related interest, any amounts otherwise payable to such
Defaulting Lender under this Agreement or any other Loan Document, and (iii) to bring an
action or suit against such Defaulting Lender in a court of competent jurisdiction to
recover the defaulted amount and any related interest. Any amounts received by
Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by Administrative Agent and either applied
against the purchase price of such Loans under Section 3.7(b) or paid to such
Defaulting Lender upon the Defaulting Lender’s curing of its default.




     (b) Purchase or Cancellation of Defaulting Lender’s Commitment. Promptly
after any Lender becomes a Delinquent Lender, Administrative Agent shall deliver notice
(“Default Notice”) of same to the other Lenders. Any Lender who is not a Defaulting
Lender shall have the right, but not the obligation, in its sole discretion, to acquire
all of a Defaulting Lender’s Commitment as set forth in this Section 3.7(b). Any
Lender desiring to exercise such right shall give written notice (“Purchase Notice”)
thereof to Administrative Agent, such Defaulting Lender, the other Lenders and Borrower no
sooner than two (2) Business Days and not later than fifteen (15) Business Days after
Lenders receive the Default Notice and Defaulting Lender shall have an additional two (2)
Business Days after receipt of the Purchase Notice to cure its default prior to Lender
exercising such purchase right. If more than one Lender exercises such right resulting in
greater funds than are necessary, the amount funded by each such Lender shall be reduced
if necessary such that each purchasing Lender’s amount funded is in proportion to the
Commitments of the other Lenders exercising such right (calculated without regard to the
Commitments of the Defaulting Lender and any other Lender who has not elected to fund).
If after such fifteenth (15th) Business Day, the Lenders have not elected to purchase all
of the Commitment of such Defaulting Lender and Defaulting Lender has not cured its
default, then Borrower may, by giving written notice thereof to Administrative Agent, such
Defaulting Lender and the other Lenders, either (i) demand that such Defaulting Lender
assign its Commitment to an Eligible Assignee approved by Administrative Agent (such
approval not to be unreasonably withheld or delayed) subject to and in accordance with the
provisions of Section 10.11(c) for the purchase price provided for below or (ii)
terminate the Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall
no longer be a party hereto or have any rights or obligations hereunder or under any of
the other Loan Documents (except as expressly provided in this Section 3.7(b))
provided that Defaulting Lender shall have an additional two (2) Business Days after
receipt of such termination notice from Borrower to cure its default. No party



41









 






hereto shall have any obligation whatsoever to initiate any such replacement or to assist
in finding an Eligible Assignee, nor shall Administrative Agent or any Lender have any
obligation whatsoever to fund any portion of the terminated commitment. Upon any such
purchase or assignment, the Defaulting Lender’s interest in the Loans and its rights
hereunder (but not its liability in respect thereof or under the Loan Documents or this
Agreement to the extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of purchase, and the Defaulting Lender shall
promptly execute all documents reasonably requested to surrender and transfer such
interest to the purchaser or assignee thereof, including an appropriate Assignment and
Acceptance Agreement and, notwithstanding Section 10.11(c), shall pay to
Administrative Agent an assignment fee in the amount of Three Thousand Five Hundred
Dollars ($3,500.00). The purchase price for the Commitment of a Defaulting Lender shall
be equal to the amount of the Principal Balance of the Loans outstanding and owed by
Borrower to the Defaulting Lender. Prior to payment of such purchase price to a
Defaulting Lender, Administrative Agent shall (i) be entitled to retain any amount from
the purchase price that is due Administrative Agent from such Defaulting Lender hereunder
and (ii) apply against such purchase price (as a credit to the purchaser) any amounts
retained by Administrative Agent that Administrative Agent shall pay to such Defaulting
Lender upon the closing of the purchase. The Defaulting Lender shall be entitled to
receive amounts owed to it by Borrower under the Loan Documents which accrued prior to the
date of the default by the Defaulting Lender, to the extent the same are received by
Administrative Agent from or on behalf of Borrower. There shall be no recourse against
any Lender or Administrative Agent for the payment of such sums except to the extent of
the receipt of payments from any other party or in respect of the Loans.



     3.8 Taxes.




     (a) Taxes Generally. All payments by Borrower of principal of, and interest
on, the Loans shall be made free and clear of and without deduction for any present or
future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority,
but excluding (x) franchise taxes, and (y) any taxes imposed on or measured by any
Lender’s assets, net income, receipts or branch profits (such non-excluded items being
collectively called “Taxes”). If any withholding or deduction from any payment to be made
by Borrower hereunder is required in respect of any Taxes pursuant to any Applicable Law,
then Borrower will:




     (i) pay directly to the relevant Governmental Authority the full amount
required to be so withheld or deducted;




     (ii) promptly forward to Administrative Agent an official receipt or other
documentation satisfactory to Administrative Agent evidencing such payment to such
Governmental Authority; and




     (iii) pay to Administrative Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts as is



42









 






necessary to ensure that the net amount actually received by Administrative Agent or such
Lender will equal the full amount that Administrative Agent or such Lender would have
received had no such withholding or deduction been required.




     (b) Tax Indemnification. If Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to Administrative Agent, for its
account or the account of the respective Lender, as the case may be, the required receipts
or other required documentary evidence, Borrower shall indemnify Administrative Agent and
the Lenders for any incremental Taxes, interest or penalties that may become payable by
Administrative Agent or any Lender as a result of any such failure. For purposes of this
Section 3.8(b), a distribution hereunder by Administrative Agent or any Lender to
or for the account of any Lender shall be deemed a payment by Borrower.




     (c) Tax Forms. Prior to the date that any Lender or Participant organized
under the laws of a jurisdiction outside the United States of America becomes a party
hereto, such Person shall deliver to Borrower and Administrative Agent (but only so long
as such Lender or Participant is or remains lawfully able to do so) such certificates,
documents or other evidence, as required by the Internal Revenue Code or Treasury
Regulations issued pursuant thereto, properly completed, currently effective and duly
executed by such Lender or Participant indicating whether payments to it hereunder and
under the Notes are (i) not subject to United States Federal backup withholding tax or
(ii) not subject to United States Federal withholding tax under the Internal Revenue Code
because such payment is either effectively connected with the conduct by such Lender or
Participant of a trade or business in the United States or totally exempt from United
States Federal withholding tax by reason of the application of the provisions of a treaty
to which the United States is a party or such Lender is otherwise wholly exempt; provided
that nothing herein (including, without limitation, the failure or inability to provide
any of such certificates, documents or other evidence) shall relieve Borrower of its
obligations under this Section 3.8. In addition, any such Lender or Participant
shall deliver to Borrower and Administrative Agent (but only so long as such Lender or
Participant is or remains lawfully able to do so) further copies of any such certificate,
document or other evidence on or before the date that any such certificate, document or
other evidence expires or becomes obsolete.



     3.9 Yield Protection, etc.




     (a) Additional Costs; Capital Adequacy.




     (i) Additional Costs. Borrower shall promptly pay to Administrative
Agent for the account of a Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs incurred by such
Lender that it reasonably determines are attributable to its making or maintaining
of any LIBOR Rate Loans or its obligation to make any LIBOR Rate Loans hereunder,
any reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or the
maintenance by such Lender of capital in respect



43









 






of its Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called “Additional Costs”), resulting from any Regulatory
Change that: (i) changes the basis of taxation of any amounts payable to such Lender
under this Agreement or any of the other Loan Documents in respect of any of such
Loans or its Commitment (other than taxes which are excluded from the definition of
Taxes pursuant to the first sentence of Section 3.8(a)); or (ii) imposes or
modifies any reserve, special deposit or similar requirements (other than Regulation
D of the Board of Governors of the Federal Reserve System or other reserve
requirement to the extent utilized in the determination of the Adjusted LIBOR Rate
for such Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender, or any commitment of such Lender
(including, without limitation, the Commitments of such Lender hereunder); or (iii)
has or would have the effect of reducing the rate of return on capital of such
Lender to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender’s policies with respect to
capital adequacy).




     (ii) Lender’s Suspension of LIBOR Rate Loans. Without limiting the
effect of the provisions of Section 3.8(a), if, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits or other
liabilities of such Lender that includes deposits by reference to which the interest
rate on LIBOR Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Lender that includes LIBOR Rate
Loans or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by notice to
Borrower (with a copy to Administrative Agent), the obligation of such Lender to
make or Continue LIBOR Rate Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section
3.9(f) shall apply).




     (iii) Notification and Determination of Additional Costs. Each of
Administrative Agent and each Lender agrees to notify Borrower of any event
occurring after the date of this Agreement entitling Administrative Agent or such
Lender to compensation under any of the preceding subsections of this Section
3.9(a) as promptly as practicable; provided, however, the failure of
Administrative Agent or any Lender to give such notice shall not release Borrower
from any of its obligations hereunder; provided, however, that notwithstanding the
foregoing provisions of this Section 3.9(a), Administrative Agent or a
Lender, as the case may be, shall not be entitled to compensation for any such
amount relating to any period ending more than six (6) months prior to the date that
Administrative Agent or such Lender, as applicable, first notifies Borrower in
writing thereof. Administrative Agent and or such Lender agrees to furnish to
Borrower a certificate setting forth the basis and amount of each request by
Administrative Agent or such Lender for compensation under this Section
3.9(a). Absent manifest error (that is an obvious mathematical error),
determinations by Administrative Agent or any Lender of the effect of any



44









 






Regulatory Change shall be conclusive, provided that such determinations are made on
a reasonable basis and in good faith.




     (b) Suspension of LIBOR Rate Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Adjusted LIBOR Rate for any
Interest Period:




     (i) Administrative Agent reasonably determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Adjusted LIBOR Rate for such
Interest Period, or




     (ii) Administrative Agent reasonably determines (which determination shall be
conclusive) that the Adjusted LIBOR Rate as determined by Administrative Agent will
not adequately and fairly reflect the cost to the Lenders of making or maintaining
LIBOR Rate Loans for such Interest Period;




then Administrative Agent shall give Borrower and each Lender prompt notice thereof and, so
long as such condition remains in effect, the Lenders shall be under no obligation to, and
shall not, make additional LIBOR Rate Loans or Continue LIBOR Rate Loans and Borrower shall,
on the last day of each current Interest Period for each outstanding LIBOR Rate Loan, either
repay such Loan or Convert such Loan into a Base Rate Loan.




     (c) Illegality. Notwithstanding any other provision of this Agreement, if it
becomes unlawful for any Lender to honor its obligation to make or maintain LIBOR Rate
Loans hereunder, then such Lender shall promptly notify Borrower thereof (with a copy to
Administrative Agent) and such Lender’s obligation to make or Continue Loans of any other
Type into, LIBOR Rate Loans shall be suspended until such time as such Lender may again
make and maintain LIBOR Rate Loans (in which case the provisions of Section 3.9(f)
shall be applicable).




     (d) Compensation. Borrower shall pay to Administrative Agent for the account
of each Lender, upon the request of such Lender through Administrative Agent, such amount
or amounts as shall be sufficient (in the reasonable opinion of such Lender) to compensate
it for any loss, cost or expense that such Lender determines is attributable to:




     (i) any payment or prepayment (whether mandatory or optional) of a LIBOR Rate
Loan, or Conversion of a LIBOR Rate Loan, made by such Lender for any reason
(including, without limitation, acceleration) on a date other than the last day of
the Interest Period for such Loan; or




     (ii) any failure by Borrower for any reason (including, without limitation, the
failure of any of the applicable conditions precedent specified in Section
5.1 to be satisfied) to borrow a LIBOR Rate Loan from such Lender on the date
for such borrowing, or Continue a LIBOR Rate Loan on the requested date of such
Continuation.



45









 






Upon Borrower’s request, any Lender requesting compensation under this Section
3.9(d) shall provide Borrower with a statement setting forth the basis for requesting
such compensation and the method for determining the amount thereof. Each Lender may use
any reasonable averaging and attribution methods generally applied by such Lender and may
include, without limitation, administrative costs as a component of such loss, cost or
expense. Absent manifest error, determinations by any Lender in any such statement shall be
conclusive, provided that such determinations are made on a reasonable basis and in good
faith.




     (e) Affected Lenders. If (i) a Lender requests compensation pursuant to
Section 3.8 or Section 3.9(a), and the Requisite Lenders are not also
doing the same, or (ii) the obligation of any Lender to make LIBOR Rate Loans or to
Continue LIBOR Rate Loans shall be suspended pursuant to Section 3.9(a)(ii) or
Section 3.9(c), but the obligation of the Requisite Lenders shall not have been
suspended under such Sections, then, so long as there does not then exist any Unmatured
Default or Event of Default, Borrower, within thirty (30) days of such request for
compensation or suspension, as applicable, may either (x) demand that each Lender consent
to the assignment of the Loans of such Lender (the “Affected Lender”) to an Eligible
Assignee, and upon such demand the Affected Lender shall promptly, assign its Commitments
to an Eligible Assignee subject to and in accordance with the provisions of Section
10.11(c) for a purchase price equal to the aggregate principal balance of Loans then
owing to the Affected Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to the Affected Lender, or (y) pay to the Affected Lender the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to the Affected Lender, whereupon the
Affected Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. Each of Administrative Agent and the
Affected Lender shall reasonably cooperate in effectuating the replacement of such
Affected Lender under this Section 3.9(e), but at no time shall Administrative
Agent, such Affected Lender nor any other Lender be obligated in any way whatsoever to
initiate any such replacement or to assist in finding an Eligible Assignee. The exercise
by Borrower of its rights under this Section 3.9(e) shall be at Borrower’s sole
cost and expense and at no cost or expense to Administrative Agent, the Affected Lender or
any of the other Lenders. The terms of this Section 3.9(e) shall not in any way
limit Borrower’s obligation to pay to any Affected Lender compensation owing to such
Affected Lender pursuant to Section 3.8, Section 3.9(a) or Section
3.9(d).




     (f) Treatment of Affected Loans. If the obligation of any Lender to make
LIBOR Rate Loans or to Continue LIBOR Rate Loans shall be suspended pursuant to
Section 3.9(a)(ii), Section 3.9(b) or Section 3.9(c), then such
Lender’s LIBOR Rate Loans shall be automatically Converted into Base Rate Loans on the
last day(s) of the then current Interest Period(s) for LIBOR Rate Loans (or, in the case
of a Conversion required by Section 3.9(a)(ii) or Section 3.9(c), on such
earlier date as such Lender may specify to Borrower with a copy to Administrative Agent)
and, unless and until such
Lender gives notice as provided below that the circumstances specified in Section
3.9(a) or Section 3.9(c) that gave rise to such Conversion no longer exist:



46









 






     (i) to the extent that such Lender’s LIBOR Rate Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied to such
Lender’s LIBOR Rate Loans shall be applied instead to its Base Rate Loans; and




     (ii) all Loans that would otherwise be made or Continued by such Lender as
LIBOR Rate Loans shall be made or Continued instead as Base Rate Loans.




If such Lender gives notice to Borrower (with a copy to Administrative Agent) that the
circumstances specified in Section 3.9(a) or Section 3.9(c) that gave rise
to the Conversion of such Lender’s LIBOR Rate Loans pursuant to this Section 3.9(f)
no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Rate Loans made by other Lenders are outstanding, then such
Lender’s Loans that are Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Rate Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by the Lenders
holding LIBOR Rate Loans and by such Lender are held pro rata (as to principal amounts,
Types and Interest Periods) in accordance with their respective Commitments.




     (g) Change of Lending Office. Each Lender agrees that it will use reasonable
efforts to designate an alternate Lending Office with respect to any of its Loans affected
by the matters or circumstances described in Section 3.8, Section 3.9(a)
or Section 3.9(c) to reduce the liability of Borrower or avoid the results
provided thereunder, so long as such designation is not disadvantageous to such Lender as
determined by such Lender in its sole discretion, except that such Lender shall have no
obligation to designate a Lending Office located in the United States of America.




     (h) Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all
amounts payable to a Lender under this Section 3 shall be made as though such
Lender had actually funded LIBOR Rate Loans through the purchase of deposits in the
relevant market bearing interest at the rate applicable to such LIBOR Rate Loans in an
amount equal to the amount of the LIBOR Rate Loans and having a maturity comparable to the
relevant Interest Period; provided, however, that each Lender may fund each of its LIBOR
Rate Loans in any manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Section 3.



     3.10 Regarding Partial Releases. Administrative Agent agrees that Administrative
Agent will provide Borrower with a partial release respecting any Property (singly and
collectively, a “Partial Release”), in form and substance satisfactory to Administrative Agent,
upon the satisfaction of the following conditions, as determined solely by Administrative Agent:




     (a) Administrative Agent shall have received not less than sixty (60) days’ prior
written notice of the estimated date of the proposed Partial Release;




     (b) There exists no Event of Default or Unmatured Default;



47









 






     (c) Contemporaneously with such Partial Release, there shall be a sale of a Project
pursuant to a purchase and sale agreement or a refinancing of such Property pursuant to a
loan transaction; and




     (d) Administrative Agent shall have first received all of the following with respect to
the Property to be released:




     (i) a copy of the applicable purchase and sale agreement or loan commitment,
certified by Borrower to be a true and complete statement of the terms of the sale
or the refinance, as applicable, with respect thereto;




     (ii) payment in full of an amount equal to one hundred percent (100%) of the
funded amount of the Project Tranche for that Property (the “Release Price”) in
certified funds (or other good and sufficient funds satisfactory to Administrative
Agent in its sole discretion) which are immediately available to Administrative
Agent without any escrow or other condition, all as determined solely by
Administrative Agent; provided, however, that the amount of any payment made in
connection with the delivery of each Partial Release shall be in addition to all
amounts due and payable by Borrower as of the date that payment thereof is made to
Administrative Agent;




     (iii) if any, payment of Administrative Agent’s out-of-pocket reasonable
expenses, including the fees and expenses of counsel, in connection with each
Partial Release;




     (iv) a Debt Service Coverage Ratio Test for the remaining Property evidencing
the remaining Property’s compliance with the Debt Service Coverage Ratio set forth
in Section 7.34, if then applicable;




     (v) a Debt Service Coverage Ratio Test for each remaining Property evidencing
each remaining Property’s compliance with the Debt Service Coverage Ratio set forth
in Section 7.35; and




     (vi) such other documents, certificates, opinions or assurances as
Administrative Agent may reasonably request including, but not limited to, a copy
of the closing statement or other evidence of the purchase price or loan amount
satisfactory to Administrative Agent with respect to the Property to be released
under each Partial Release.


Amounts received by Administrative Agent pursuant to this Section 3.10 shall be applied
first to the payment of any unpaid costs and expenses, then to any accrued and unpaid interest,
then to the outstanding principal balance of the Loans related to the applicable Project Tranche
being released, and then to any amounts due and owing under the Loan Documents. Administrative
Agent shall only provide a Partial Release in the ordinary course of business, only after
Administrative Agent has received payment in full of each applicable Release Price.







48









 








SECTION 4.

CONDITIONS TO LOAN OPENING DATE




     Prior to the Loan Opening Date, Borrower shall execute and/or deliver to Administrative Agent
the following documents and other items required to be executed and/or delivered by Borrower, and
shall cause to be executed and/or delivered to Administrative Agent the following documents and
other items required to be executed and/or delivered by others, all of which documents and other
items shall contain such provisions as shall be required to conform to this Agreement and otherwise
shall be satisfactory in form and substance to Administrative Agent:



     4.1 The Loan Documents. The Loan Documents.



     4.2 Survey. A plat of survey (“Survey”) of each Real Property made by a land surveyor
licensed in the applicable State, showing:




     (a) improvements on the Land;




     (b) the location (and recording numbers, to the extent recorded) of all visible or
recorded easements (including appurtenant easements), water courses, drains, sewers,
public and private roads (including the names and widths thereof and recording numbers for
the dedications thereof), other rights of way, and curb cuts, if any, within or serving
the Real Property or to which the Real Property is subject, and the proposed location of
any such easements to be granted; that the same are, and after construction of the Project
and granting of easements will be, unobstructed; and that all portions of the Project will
have direct access to dedicated public roads;




     (c) the location of the servient estate of any easements, if the Land is the dominant
estate thereunder;




     (d) the dimensions, boundaries and acreage or square footage of the Land;




     (e) that there are no encroachments onto the Land from improvements located on
adjoining property;




     (f) if visibly evident or plottable based on documents of record, the location and
course of all utility lines;




     (g) if the Real Property comprises more than one parcel, interior lines and other
data sufficient to insure contiguity; and




     (h) such additional information which may be reasonably required by Administrative
Agent or the Title Company.



     The Survey shall be made in accordance with (i) the 2005 survey standards of the American Land
Title Association and American Congress on Surveying and Mapping including items 1, 2, 3, 4, 6,
7(a) and (b), 8, 9, 10, 11(a) and (b), of Table A thereof and (ii) the laws of the State. To the
extent that there is any conflict or inconsistency among the Survey standards described above, the
more restrictive standard shall apply. The Survey shall be dated not more



49









 




than sixty (60) days prior to the date of this Agreement, and shall bear a proper certificate by
the surveyor, which certificate shall recite compliance with the laws and standards enumerated
above, shall include the legal description of the Land and shall run in favor of Borrower,
Administrative Agent on behalf of the Lenders, and the Title Company.




     4.3 Insurance. The certificates of insurance as provided in Exhibit H of this
Agreement.



     4.4 Title Policy. An ALTA 2006 Loan Policy of Title Insurance (the “Title Policy”)
for each Property issued by the Title Company and insuring, in the aggregate, the full amount of
the Notes, and insuring each Mortgage will be a first priority lien upon the fee simple title to
each Real Property to the extent of advances of the Loan made by Lenders from time to time under
this Agreement, and in the case of the Fort Collins Project, the leasehold estate to the Fort
Collins Real Property, subject to no liens, claims, exceptions or encumbrances except the Permitted
Exceptions and containing the following endorsements (to the extent available in the applicable
State):




     (a) Modified ALTA Broad Form 3.1-06 Zoning Endorsement (in the form modified for
construction loans), including coverage for parking and for loading docks and bays and
deleting the marketability limitation, based upon the completion of the Project in
accordance with the Plans and Specifications;




     (b) Modified Comprehensive Endorsement (Endorsement 9.3-06) (in form modified for
construction loans);




     (c) Access Endorsement (ALTA Endorsement 17-06);




     (d) Survey Endorsement;




     (e) Tax Parcel Endorsement (ALTA Endorsement 18-06 or 18.1-06 as applicable);




     (f) Contiguity Endorsement, if applicable (ALTA Endorsement 19-06);




     (g) Utility Facilities Endorsement;




     (h) Usury Endorsement;




     (i) Full mechanics lien coverage;




     (j) First Loss Endorsement;




     (k) Subdivision Endorsement;




     (l) Tie-In Endorsement;




     (m) Leasehold Endorsement for Fort Collins Real Property;




50











 






     (n) Pending Disbursement (Future Advance) Endorsement (ALTA Endorsement 14-06);
and




     (o) Such additional endorsements as may be reasonably required by Lender based upon
its review of the Title Policy and Survey.



     4.5 Title Documents. Copies of such documents, if any, as Borrower has provided the
Title Company in connection with the issuance and underwriting of each Title Policy.



     4.6 Recorded Documents. Copies of all recorded documents described in each Title
Policy.



     4.7 Searches. Current Uniform Commercial Code, federal and state tax lien and
judgment searches, pending suit and litigation searches and bankruptcy court filings searches
covering Borrower and Guarantors and disclosing no matters objectionable to Administrative Agent.



     4.8 Consents. The Architect’s Consent, the Engineer’s Consent, and the Contractor’s
Consent.



     4.9 Contracts. Copies of the Construction Contract, the Engineering Contract and the
Architectural Contract.



     4.10 Opinions. Opinion letters from legal counsel for Borrower and Guarantors (which
counsel must be approved by Administrative Agent with respect to the issuance of such opinion),
opining to the authority of said parties to execute, deliver and perform their respective
obligations under the Loan Documents, to the validity and binding effect and enforceability of the
Loan Documents and to such other matters as Administrative Agent and its counsel shall require.



     4.11 Geotechnical Reports. A soil test report prepared by a licensed soil engineer
approved by Administrative Agent and otherwise satisfactory in all respects to Administrative Agent
containing, among other things, boring logs and the locations of all borings and confirming that no
condition exists with respect to each Land which would cause subsidence of any portion of any Land
and showing that no state of facts exists which would adversely affect the completion of the Work
in accordance with the applicable Plans and Specifications or would require any costs with respect
thereto not otherwise provided for in the applicable Budget.



     4.12 Flood Hazards. Evidence that (a) no portion of any Real Property is located in an area designated by the
Secretary of Housing and Urban Development as having special flood hazards, or if any portion of
such Real Property is so located and where any vertical portion of the Improvements will be
constructed thereon, evidence that flood insurance is in effect; and (b) no portion of any Real
Property where Improvements are contemplated is located in a federally, state or locally designated
wetland or other type of government protected area.



     4.13 Organizational Documents. Certified copies of (a) Borrower’s, each Guarantor’s,
and any Signing Entity’s (if applicable) articles of organization, certificate of limited
partnership or articles of incorporation, including all amendments thereto; (b) the limited
liability company



51









 




agreement, limited partnership agreement, or bylaws of Borrower, each Guarantor,
and any Signing Entity, including all amendments thereto; and (c) such documents as Administrative
Agent deems appropriate evidencing the authority of Borrower, Guarantor, and any Signing Entity (if
applicable) to borrow the proceeds of the Loan and execute and deliver this Agreement and the other
Loan Documents.




     4.14 Environmental Report. Evidence that the environmental condition of the Property
is, and the environmental condition of the Land upon completion will be, satisfactory to
Administrative Agent. Such evidence shall include, but shall not be limited to, a Phase I
Environmental Audit certified to Borrower and Administrative Agent, for the benefit of the Lenders,
and setting forth other appropriate environmental investigations of the Property and the areas
surrounding the Property. Such testing and investigation shall be performed by an environmental
professional acceptable to Administrative Agent in a manner satisfactory to Administrative Agent.



     4.15 Commitment. Evidence that in no event shall the maximum aggregate Commitment of
the Lenders exceed the lesser of (i) Fifty-Two Million Seven Hundred Fifty-One Thousand One Hundred
Twenty-Three Dollars ($52,751,123.00); (ii) a sixty percent (60.0%) loan-to-value ratio on an “as
stabilized” basis of the Project based upon an appraisal satisfactory to Administrative Agent; or
(iii) a sixty percent percent (60.0%) loan-to-cost ratio based upon the Project Costs set forth in
the Budget including, without limitation, sixty-three percent (63%) of the “as-is” value or
contract price of any Land.



     4.16 No Material Adverse Occurrences. Evidence that, as of the date of the Loan
Opening, there has been no Material Adverse Occurrence in the financial or other projections for
the Project, the physical condition of the Property or the financial condition of Borrower or any
Guarantor since the date of the most recent financial statements or projections delivered to
Administrative Agent or the most recent inspections of the condition of the Property made by the
Consultant, as the case may be.



     4.17 Appraisal. An MAI appraisal satisfactory to Administrative Agent prepared in accordance with the
requirements of FIRREA by a licensed or certified appraiser acceptable to Administrative Agent
showing an appraised value of the Property sufficient to satisfy a sixty percent (60.0%)
loan-to-value ratio on an “as stabilized” basis of the Property.



     4.18 Construction Schedule. Each Construction Schedule for each Project.



     4.19 Construction Escrow Agreement. The Construction Escrow Agreements.



     4.20 Material Subcontracts. At Administrative Agent’s request, copies of all Material
Subcontracts.



     4.21 Utilities. Evidence that all major utility services for each Project are
available at each Real Property and/or are available at the property lines of each Real Property.



     4.22 Property Management Contract. A certified copy of each Property Management
Contract for each Property.



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     4.23 Form Leases. A certified copy of a form Lease for each Property, in form and
substance satisfactory to Administrative Agent.



     4.24 Fort Collins Ground Lease. A fully executed copy of the Fort Collins Ground
Lease.



     4.25 Fort Collins Ground Lease Estoppel. A fully executed copy of the Fort Collins
Ground Lease Estoppel in form and substance satisfactory to Administrative Agent.



SECTION 5.

DISBURSEMENT OF THE LOAN




     5.1 Conditions Precedent in General. In addition to the other conditions set forth
herein, the obligation of Lenders to make the Initial Advance and each subsequent Loan Advance
under this Agreement shall be conditioned upon and subject to the payment to Administrative Agent
of all loan fees then owing from Borrower to Administrative Agent and Lenders and to satisfaction of all of the following
conditions:




     (a) All representations and warranties contained in this Agreement and in the other
Loan Documents shall be true in all material respects on and as of the date of such Loan
Advance, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case, they are true and correct as of such earlier date.




     (b) Borrower shall have performed all of its obligations under all Loan Documents
which are required to be performed on or prior to the date of such Loan Advance.




     (c) Prior to the Initial Advance for each applicable Project Tranche, the cash
portion of the Equity Requirement for such Project shall have been disbursed (or if the
Loan Advance is the Initial Advance, shall be disbursed simultaneously with such Initial
Advance).




     (d) Both before and after giving effect to the Loan Advance, each Project Tranche is
In Balance.




     (e) There shall have been no Material Adverse Occurrence to Borrower or any Guarantor
since the Loan Opening Date, as reasonably determined by Administrative Agent.




     (f) No Event of Default shall have occurred that has not been waived in writing by
the Requisite Lenders (or all Lenders if so required by Section 10.12(d)), and no
Unmatured Default shall then exist.




     (g) No litigation or proceedings are pending or threatened (including proceedings
under Title 11 of the United States Code) against Borrower, any Guarantor, or any Project,
which litigation or proceedings, in the reasonable judgment of Administrative Agent, could
constitute a Material Adverse Occurrence.



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     (h) Prior to the Initial Advance of the Ames Tranche, Borrower shall execute and/or
deliver to Administrative Agent the following documents, which documents shall contain
such provisions as shall be required to conform to this Agreement and otherwise shall be
satisfactory in form and substance to Administrative Agent:




     (i) A copy of the Ames Plans and Specifications, which have been approved by
Borrower and Administrative Agent and approved and stamped by the appropriate
governmental authorities, including detailed descriptions (with drawings and
specifications);




     (ii) A copy of the site plan of the Ames Land, in form and substance
satisfactory to Administrative Agent, showing the proposed location of each of the
Ames Improvements;




     (iii) A fully executed copy of a Rate Management Agreement which contains terms
and is in a form which is satisfactory to Administrative Agent;




     (iv) A fully executed Assignment of Rate Management Agreement, in form and
substance satisfactory to Administrative Agent;




     (v) On or prior to December 31, 2010, evidence satisfactory to Administrative
Agent that the Ames Condominium Declaration has been recorded against the Ames Land;




     (vi) Simultaneous with the recording of the Ames Condominium Declaration, a
fully executed and recorded amendment to the Ames Mortgage, in form and substance
satisfactory to Administrative Agent, amending the legal description of the Ames
Mortgage to include the Condominium Units (the “Ames Mortgage Amendment”);




     (vii) A date down endorsement, in form and substance satisfactory to
Administrative Agent, to the Title Policy issued in connection with the Ames
Mortgage which endorsement shall evidence the submission of the Ames Land to the
Ames Condominium Declaration, including, without limitation, an updated schedule
listing the Condominium Units as the insured parcel and adding the Ames Mortgage
Amendment as part of the insured security instrument;




     (viii) Evidence satisfactory to Administrative Agent that a separate tax parcel
has been issued for the Ames Land; and




     (ix) A tax parcel endorsement, in form and substance satisfactory to
Administrative Agent, to the Title Policy issued in connection with the Ames
Mortgage.




     (i) Prior to the Initial Advance of the Clarksville Tranche, Borrower shall execute
and/or deliver to Administrative Agent the following documents, which documents shall
contain such provisions as shall be required to conform to this



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Agreement and otherwise shall be satisfactory in form and substance to Administrative Agent:





     (i) A copy of the Clarksville Plans and Specifications, which have been
approved by Borrower and Administrative Agent and approved and stamped by the
appropriate governmental authorities, including detailed descriptions (with drawings
and specifications);




     (ii) A copy of the site plan of the Clarksville Land, in form and substance
satisfactory to Administrative Agent, showing the proposed location of each of the
Clarksville Improvements;




     (iii) A fully executed copy of a Rate Management Agreement which contains terms
and is in a form which is satisfactory to Administrative Agent; and




     (iv) A fully executed Assignment of Rate Management Agreement, in form and
substance satisfactory to Administrative Agent.




     (j) Prior to the Initial Advance of the Fort Collins Tranche, Borrower shall execute
and/or deliver to Administrative Agent the following documents, which documents shall
contain such provisions as shall be required to conform to this Agreement and otherwise
shall be satisfactory in form and substance to Administrative Agent:




     (i) A copy of the Fort Collins Plans and Specifications, which have been
approved by Borrower and Administrative Agent and approved and stamped by the
appropriate governmental authorities, including detailed descriptions (with drawings
and specifications);




     (ii) A copy of the site plan of the Fort Collins Land, in form and substance
satisfactory to Administrative Agent, showing the proposed location of each of the
Fort Collins Improvements;




     (iii) A fully executed copy of a Rate Management Agreement which contains terms
and is in a form which is satisfactory to Administrative Agent;




     (iv) A fully executed Assignment of Rate Management Agreement, in form and
substance satisfactory to Administrative Agent;




     (v) A recorded release, in form and substance satisfactory to Administrative
Agent, releasing that certain Real Estate Mortgage made by the Ground Lessor in
favor of Windtrail LLC dated May 29, 1996 and recorded against the Fort Collins
Land, as assigned to Bank One, Colorado, N.A., pursuant to that certain Assignment
of Deed of Trust or Mortgage dated September 11, 1997 (the “Ground Lessor
Mortgage”);




     (vi) A date down endorsement, in form and substance satisfactory to
Administrative Agent, to the Title Policy issued in connection with the Fort



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Collins Deed of Trust which endorsement shall evidence the deletion of the title exception
for the Ground Lessor Mortgage;




     (vii) Evidence that all major utility services for the Fort Collins Project are
available at the Fort Collins Real Property and/or are available at the property
lines of the Fort Collins Real Property;




     (viii) Evidence satisfactory to Administrative Agent that the Fort Collins Plat
has been recorded against the Fort Collins Land;




     (ix) Simultaneous with the recording of the Fort Collins Plat, a fully executed
and recorded amendment to the Fort Collins Deed of Trust, in form and substance
satisfactory to Administrative Agent, amending the legal description of the Fort
Collins Deed of Trust to replace the metes and bounds legal description
of Lots 1 and 2 and Outlot B with a platted lot description (the “Fort Collins
Deed of Trust Amendment”);




     (x) A date down endorsement, in form and substance satisfactory to
Administrative Agent, to the Title Policy issued in connection with the Fort Collins
Deed of Trust which endorsement shall evidence the recording of the Fort Collins
Plat, including, without limitation, an updated schedule listing Lots 1 and 2 and
Outlot B as the insured parcel and adding the Fort Collins Deed of Trust Amendment
as part of the insured security instrument; and




     (xi) A subdivision endorsement, in form and substance satisfactory to
Administrative Agent, to the Title Policy issued in connection with the Fort Collins
Deed of Trust.




     (k) Prior to the Initial Advance of the Fort Wayne Tranche, Borrower shall execute
and/or deliver to Administrative Agent the following documents, which documents shall
contain such provisions as shall be required to conform to this Agreement and otherwise
shall be satisfactory in form and substance to Administrative Agent:




     (i) A copy of the Fort Wayne Plans and Specifications, which have been approved
by Borrower and Administrative Agent and approved and stamped by the appropriate
governmental authorities, including detailed descriptions (with drawings and
specifications);




     (ii) A copy of the site plan of the Fort Wayne Land, in form and substance
satisfactory to Administrative Agent, showing the proposed location of each of the
Fort Wayne Improvements;




     (iii) A fully executed copy of a Rate Management Agreement which contains terms
and is in a form which is satisfactory to Administrative Agent; and




     (iv) A fully executed Assignment of Rate Management Agreement, in form and
substance satisfactory to Administrative Agent.



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     (l) Borrower shall have delivered to Administrative Agent a request for disbursement
in the form attached hereto as Exhibit F not more than ten (10) days prior to the
requested Loan Advance, specifying the Project for which the disbursement is being made
and the amount and mode of each Loan Advance in detail and accompanied by the following,
all in form and substance satisfactory to Administrative Agent:




     (i) An owner’s sworn statement and disbursement request;




     (ii) An application for payment and sworn Contractor’s statement from
Contractor, and a statement of a duly authorized officer of Contractor that all
items of construction cost have been incorporated into the applicable Project in
accordance with the applicable Plans and Specifications, together with waivers of
lien with respect to the current disbursement and all previous disbursements from
the Contractor and all Subcontractors and materialmen to whom payment is to be
made, as are required by the Title Company as a condition to issuing the mechanic’s
lien endorsement described in Section 5.1(p);




     (iii) Invoices for all soft costs which are the subject of the Loan Advance;




     (iv) Building and other applicable permits issued by the appropriate
governmental bodies for all Work for which a Loan Advance is requested; and




     (v) Such other documents, assignments, certificates and opinions as are
required by the Title Company, or as may be reasonably required by Administrative
Agent.




     (m) An inspection report of the Consultant certifying the percentages of completion
of the components of the Work for the applicable Project and setting forth the amount
authorized for disbursement and such other matters as Administrative Agent may require
(including compliance with the applicable Plans and Specifications and the applicable
Construction Schedule).




     (n) Subject to Force Majeure, no event, circumstance or condition exists or has
occurred which, in Administrative Agent’s sole judgment, could delay or prevent the
completion of the Work for the applicable Project by the Construction Completion Date.




     (o) Administrative Agent shall be satisfied as to the continuing accuracy of the
applicable Budget.




     (p) Upon the disbursement of the Loan Advance, an endorsement to the applicable Title
Policy shall be issued by the Title Company, updating the same to the date of such Loan
Advance and increasing the amount of coverage (including mechanics lien coverage)
thereunder to the Principal Balance (taking into account the then current Loan Advance),
and insuring the lien of the applicable Mortgage to be superior to all defects in title
other than the applicable Permitted Exceptions and other exceptions hereafter approved by
Administrative Agent in writing. No Loan Advance



57









 






shall be made until Borrower furnishes Administrative Agent with a mechanic’s lien endorsement for such advance.




     (q) If such Loan Advance is to be made in whole or in part for materials purchased by
Borrower but not yet installed or incorporated into the applicable Project, (i)
Administrative Agent shall be satisfied with the conditions under which such materials are
purchased and stored, (ii) the materials involved shall have been delivered to the
applicable Land or stored with a bonded warehouseman, with satisfactory evidence of
security, insurance both during storage and transit and suitable storage, (iii) a copy of
a bill of sale or other evidence of title in Borrower, together with a copy of UCC
searches against Borrower and the warehouseman, if applicable, indicating no liens or
claims which may affect such materials shall have been delivered to Administrative Agent
and (iv) Borrower shall have provided Administrative Agent, any architect and any applicable governmental agency or testing authority having
jurisdiction over the applicable Project with access to inspect, test or otherwise examine
such stored and unincorporated materials.




     (r) If requested by Administrative Agent, within thirty (30) days subsequent to the
completion of the foundations of any Project, the applicable Survey shall be updated to
show the location of such foundations, that such foundations are within all applicable
lot, side, rear and set-back lines; and that there are no encroachments by the applicable
Improvements over easements or adjoining property.




     (s) Borrower has provided evidence that it has fully funded the applicable Equity
Requirements.



     5.2 Amount of Disbursements; Retainage. Subject to the other conditions and
limitations set forth herein, the amount of each disbursement shall be the amount requested by
Borrower; provided, however, that (a) Administrative Agent, on behalf of the Lenders, shall have
the right to retain ten percent (10%) of each item of the applicable Project Costs pertaining to
materials and labor (other than (1) amounts requested for payment to suppliers of materials only
who have either fully delivered all materials or delivered such portion thereof whereby it is
reasonable and necessary to fully pay for such materials and (2) soft cost amounts so long as any
applicable provider delivers any and all waiver or releases required to the extent that such
provider has the right to file liens against the applicable Land), provided, however, that from and
after such time as fifty percent (50%) of the applicable Project has been completed as determined
by the Administrative Agent, such retainage amount shall reduce to five percent (5%), which
Retainage shall be disbursed in accordance with the provisions of Section 5.6, and (b) in
no event shall Lenders be obligated to disburse for any item an amount in excess of the amount
allocated for such item pursuant to the applicable Budget.



     5.3 Certifications, Representations and Warranties. Each request for a Loan Advance
by Borrower shall constitute (a) Borrower’s certification that the representations and warranties
contained in Section 6 below are true and correct in all material respects as of the date
of such request, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case, they are true and correct as of such earlier date, (b)
Borrower’s certification that Borrower is in compliance with the conditions contained in this
Section 5, and



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(c) Borrower’s representation and warranty to Lender, with respect to the
Work, materials and other items for which payment is requested that (i) such Work and materials for
which Loan proceeds were previously disbursed have been incorporated into the applicable Project
(or otherwise satisfy the terms and conditions of Section 5.1(q) hereof), free and clear of
liens, claims and encumbrances, (ii) the value thereof is as estimated therein, (iii) such Work and
materials substantially conform to the applicable Plans and Specifications, this Agreement and all
Applicable Laws, and (iv) the requisitioned value of such Work and materials and the amounts of all
other items of cost for which payment is requested by Borrower have theretofore been in fact paid
for in cash by Borrower or the same are then due and owing by Borrower and will in fact be paid in
cash by Borrower within ten (10) days after Borrower’s receipt of the requested Loan Advance. Neither review nor approval by
Administrative Agent of requests for disbursement or any information contained therein or any other
information provided to Administrative Agent in accordance with the other provisions of this
Section 5 shall constitute the acceptance or approval by Administrative Agent of any
portion of the Work.




     5.4 Costs. For purposes of this Agreement (a) the cost of labor and material (except
stored and unincorporated materials) furnished for the Work shall be deemed to be incurred by
Borrower when the labor and material have been incorporated into the applicable Project and the
payment therefor is due and payable, (b) the cost of stored and unincorporated materials shall be
deemed to be incurred by Borrower when such materials are purchased by Borrower, (c) the cost of
services (other than labor included in the Work) shall be deemed to be incurred by Borrower when
the services are actually rendered and the payment therefor is due and payable, (d) real estate
taxes, interest and insurance premiums shall be deemed to be incurred by Borrower when such items
become due and payable, and (e) any other costs shall be deemed to be incurred by Borrower when the
payment therefor is due and payable, but not before the value to be received in return for such
cost has been received by Borrower.



     5.5 Method and Application of Disbursements.




     (a) Loan Advances for the Fort Wayne Project and the Fort Collins Project shall be
made through the Title Company, and Borrower will cause the Contractor to comply with the
requirements of the Title Company in order to enable said escrowee to issue to
Administrative Agent a “date down” endorsement to the applicable Title Policy, make
disbursements and obtain necessary sworn statements and waivers of lien, provided,
however, that Administrative Agent, in its sole discretion, may make payments of the
applicable Project Costs directly to Borrower or to the person or entity Administrative
Agent determines is entitled to payment or jointly to Borrower and such person or entity.
Once the Loan Advance is funded to the Title Company or to the person or entity
Administrative Agent determines is entitled to payment, such Loan Advance shall be deemed
to have been funded to Borrower.




     (b) Notwithstanding the foregoing, neither Administrative Agent nor any Lender shall
be responsible, liable or obligated to the Contractor, Subcontractors, suppliers,
materialmen, laborers, architects, engineers, or any other parties, for services or work
performed, or for goods delivered by them or any of them, in and upon the Land or employed
directly or indirectly in the performance of the Work, or for any debts or claims
whatsoever accruing in favor of any such parties and against Borrower



59









 






or others, or against the Project. It is expressly understood and agreed that Borrower is not and shall
not be an agent of Administrative Agent or any Lender for any purpose whatsoever. Without
limiting the generality of the foregoing, advances made at Administrative Agent’s option,
directly to the Contractor, any Subcontractor or supplier of labor or materials, or any
other party, shall not be deemed a recognition by Administrative Agent of any third party
beneficiary status of any such Person or entity.




     (c) Notwithstanding anything to the contrary contained herein, in connection with the
Fort Collins Project, Fort Collins Borrower covenants and agrees that advances of the Fort
Collins Equity Requirement shall be made through the Title Company in order to enable said
escrowee to issue to Administrative Agent a “date down” endorsement to the Title Policy
issued in connection with the Fort Collins Deed of Trust (which date down endorsement
shall provide affirmative coverage as to any mechanics’ liens), make disbursements and
obtain necessary sworn statements and waivers of lien.



     5.6 Release of Retainage. Retainage(s) shall be released as follows:




     (a) Retainage on any Subcontract shall be released within thirty (30) days after such
Subcontract has been fully performed and the following conditions have been satisfied:




     (i) Borrower has delivered final and unconditional waivers of lien from the
Subcontractor whose individual Subcontract has been fully performed to the Title
Company with copies to Administrative Agent;




     (ii) All conditions precedent to disbursement of Loan Advances as set forth in
Section 5.1 have been fully satisfied; and




     (iii) Administrative Agent has received a certificate in writing signed by a
duly authorized officer of Contractor certifying that the Work provided for in the
Subcontract has been satisfactorily completed substantially in accordance with the
applicable Plans and Specifications, and in compliance with all Applicable Laws, and
the Consultant has approved all such Work.




     (b) Final disbursement of Retainages to the Contractor for the Work not previously
released shall be made upon satisfaction of the following conditions in addition to
satisfaction of the other conditions set forth in Section 5.1:




     (i) Borrower has delivered to Administrative Agent a certificate in writing
signed by a duly authorized officer of the Contractor certifying that all
obligations of the Contractor under the Construction Contract and all obligations of
the Subcontractors under the Subcontracts have been fully performed and certifying
that the construction of the Work has been completed in all material respects in
accordance with the applicable Plans and Specifications and the use and occupancy of
the applicable Project is permitted under all Applicable Laws;



60









 






     (ii) Borrower has delivered to Administrative Agent all applicable licenses or
permits necessary for the use of the applicable Project, including without
limitation, a final, unconditional certificate of occupancy for the applicable
Project (or a local equivalent, if applicable);




     (iii) Borrower has delivered to Administrative Agent certificates of fire and
extended coverage insurance as herein required, and if any Tenants are in occupancy
and if requested by Administrative Agent, rent loss insurance in form and substance
reasonably satisfactory to Administrative Agent, with Administrative Agent named as
mortgagee and as an additional insured party and loss payee;




     (iv) The Title Company is unconditionally prepared to issue its final updated
date down endorsement to the applicable Title Policy covering the Principal Balance
of the Loan, subject only to the Permitted Exceptions and other exceptions approved
by Administrative Agent in writing, and including full coverage against all
mechanics’ liens and such other endorsements as are required by Administrative
Agent;




     (v) Borrower has delivered to the Title Company and Administrative Agent final
and unconditional waivers of lien from the Contractor and all Subcontractors and
materialmen who have supplied labor or material in connection with the Work and who
have not previously submitted such final waivers; and




     (vi) Borrower has delivered to Administrative Agent the Survey updated to show
the Project “as built” and to show the location of all utilities and any additional
easements or other matters of record affecting the Project.



     5.7 Interest Reserve. An amount equal to Two Hundred Sixty-Eight Thousand Eight
Hundred Seventy-Nine Dollars ($268,879.00) exists as a line item in the Ames Budget for the payment
of interest under the Loan (the “Ames Interest Reserve”). An amount equal to Two Hundred
Sixty-Nine Thousand Eight Hundred Thirty-Six Dollars ($269,836.00) exists as a line item in the
Clarksville Budget for the payment of interest under the Loan (the “Clarksville Interest Reserve”).
An amount equal to Three Hundred Thirty-Six Thousand Five Hundred Ninety-Nine Dollars
($336,599.00) exists as a line item in the Fort Collins Budget for the payment of interest under
the Loan (the “Fort Collins Interest Reserve”). An amount equal to Two Hundred Forty-Three
Thousand Seven Hundred Twenty-Nine Dollars ($243,729.00) exists as a line item in the Fort Wayne
Budget for the payment of interest under the Loan (the “Fort Wayne Interest Reserve”; together with
the Ames Interest Reserve, the Clarksville Interest Reserve, and the Fort Collins Interest Reserve,
individually and collectively, the “Interest Reserve”). If Borrower provides Administrative Agent
with evidence reasonably satisfactory to Administrative Agent that the cash proceeds available to
Borrower from the applicable Project are in an amount which is insufficient to make the payment of
interest on the Principal Balance of the applicable Project Tranche on the next interest payment
date, together with such other information as Administrative Agent may reasonably require,
Administrative Agent agrees to make Loan Advances on the next monthly interest payment date to
itself directly for such



61









 




applicable interest payment. Borrower acknowledges and agrees that
Administrative Agent shall have no obligation to disburse funds from the Interest Reserve if there
exists an Unmatured Default, an Event of Default or there are sufficient cash proceeds available to
Borrower from the applicable Project to make the payment of interest on the Principal Balance of the applicable Project Tranche. If
the amounts contained in the Interest Reserve are insufficient to pay interest on the Loans
thereafter to become due, as estimated by Administrative Agent, Borrower shall deposit with
Administrative Agent sufficient funds so as to maintain an adequate Interest Reserve.




SECTION 6.

REPRESENTATIONS AND WARRANTIES




     In order to induce Administrative Agent and the Lenders to execute this Agreement and to make
the Loan, Borrower represents and warrants to Administrative Agent and the Lenders as follows:



     6.1 Organization of Parties. Each of Borrower, Guarantor and each Signing Party is
duly organized, validly existing and in good standing under the laws of its respective state of
organization, has all necessary power and authority to carry on its present business, and has full
right, power and authority to enter into and deliver the Loan Document to which it is party, and to
perform and consummate the transactions contemplated hereby and thereby. The direct and indirect
ownership of Borrower is as shown on Schedule 6.1. The organizational documents of
Borrower, Guarantor and each Signing Entity, copies of which have been furnished to Administrative
Agent, are in effect, unamended, and are the true, correct and complete documents relating to each
such entity’s creation and governance.



     6.2 Title. Except in connection with any leased Personal Property as permitted for
herein this Agreement, the Property Borrowers own good and marketable fee simple title to the Real
Property and the Personal Property, provided however, in connection with the Fort Collins Real
Property, Fort Collins Borrower holds a valid leasehold interest in the Fort Collins Real Property.
The Real Property and the Personal Property are owned free and clear of all liens, claims and
encumbrances, except the Permitted Exceptions, provided however, the Fort Collins’ Borrower’s
leasehold interest in the Fort Collins Real Property is free and clear of all liens, claims and
encumbrances, except the Permitted Exceptions.



     6.3 Improvements. Subject to the terms and conditions contained in this Agreement,
Borrower intends to improve the Land with the Improvements. The Work will be performed in
accordance with the provisions of the Plans and Specifications and the Budget and all of the other
requirements of this Agreement.



     6.4 Validity and Enforceability of Documents.



     (a) Each of the Loan Documents has been duly authorized, executed and delivered by Borrower
and/or Guarantor, as applicable, and are valid and binding upon the parties thereto, enforceable in
accordance with the respective provisions thereof, subject only to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws
affecting the enforcement of creditor’s rights.
Execution, delivery and performance of the Loan Documents



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do not and will not contravene, conflict with, violate or constitute a default under the
certificate of formation, the operating agreement or any other organizational documents of
Borrower, Guarantor or any other Signing Entity, or, to the best of Borrower’s knowledge, any
Applicable Law or any agreement, indenture or instrument to which Borrower or any Guarantor or any
other Signing Party is a party or is bound or which is binding upon or applicable to the Project or
any portion thereof.




     (b) To the best of the Borrower’s knowledge, all plans, contracts, budgets, agreements,
surveys, consents, waivers, documents and writings of every kind or character relating to the
transactions contemplated hereby delivered to Administrative Agent, whether pursuant to the
provisions of this Agreement or otherwise, are or will at the time of delivery be valid and
enforceable and in all respects what they purport to be, and to the extent that any such writing
shall impose any obligation or duty on Borrower or Guarantor or shall constitute a waiver of any
rights which Borrower or Guarantor might otherwise have, such writing shall be valid and
enforceable against Borrower or Guarantor in accordance with its terms.



     6.5 Litigation. There is not any condition, event or circumstance existing, or any
litigation, arbitration, governmental or administrative proceeding, action, examination, claims or
demand pending or, to the best of Borrower’s knowledge after due inquiry, threatened affecting
Borrower, any Guarantor or the Project, or involving the validity or enforceability of the Loan
Documents or involving any risk of a judgment or liability which, if satisfied, would result in a
Material Adverse Occurrence. There is no Uniform Commercial Code financing statement on file that
names Borrower or Guarantor as debtor and covers any of the Collateral, and there is no judgment or
tax lien outstanding against Borrower or Guarantor.



     6.6 Utilities; Authorities. All utilities necessary for the use, operation and
occupancy of the Project (including, without limitation and as applicable, water, storm sewer,
sanitary sewer and drainage, electric, gas and telephone facilities) are available at the Land, and
all requirements for the use of such utilities have been fulfilled or will be fulfilled prior to
the completion of each Project. All building, zoning, safety, disabled persons, health, fire,
water district, sewerage and environmental protection agency permits and other licenses and permits
which are required by any governmental authority for construction of the Improvements, and the use,
occupancy and operation of the Project in accordance with the Plans and Specifications have been
(or will be) obtained by or furnished to Borrower and will be maintained in full force and effect.



     6.7 Solvency. Each Obligor is solvent and able to pay such Obligor’s debts as such
debts become due, and has capital sufficient to carry on such Obligor’s present business
transactions. The value of each Obligor’s property, at a fair valuation, is greater than the sum
of such Obligor’s debts. No Obligor is bankrupt or insolvent, nor has any Obligor made an
assignment for the benefit of such Obligor’s creditors, nor has there been a trustee or receiver
appointed for the benefit of such Obligor’s creditors, nor has there been any bankruptcy, reorganization or insolvency
proceedings instituted by or against any Obligor, nor will any Obligor be rendered insolvent by
such Obligor’s execution, delivery or performance of the Loan Documents or by the transactions
contemplated thereunder.



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     6.8 Financial Statements. All financial statements submitted to Administrative Agent
relating to Borrower, the Guarantor and the Project are true, complete and correct, and, where
required, have been prepared in accordance with generally accepted accounting principles
consistently applied, and fairly present the financial condition of the Person to which they
pertain and the other information therein described and do not contain any untrue statement of a
material fact or omit to state a fact material to the financial statement submitted or this
Agreement. No Material Adverse Occurrence has occurred in the financial condition of Borrower, any
Guarantor or the Project and no material increase in the contingent liabilities of Borrower or
Guarantor has occurred, in each case, since the dates of each such financial statement.



     6.9 Compliance with Laws. To the best of the Borrower’s knowledge, upon completion of
the Work in accordance with the Plans and Specifications, the Project and the use, occupancy and
operation thereof for their intended purposes will not violate any Applicable Laws, any contractual
arrangements with third parties, or any covenants, conditions, easements, rights of way or
restrictions of record affecting the Project. Neither Borrower nor any agent thereof has received
any notice, written or otherwise, alleging any such violation, which violation has not previously
been cured. Upon completion of the Work in accordance with the Plans and Specifications, the
Project will be in full compliance and conformity with all zoning requirements, including without
limitation, those relating to setbacks, height, parking, floor area ratio, fire lanes and
percentage of land coverage, and will not be a non-conforming or special use. No right to any
off-site facilities (other than rights already obtained) will be necessary to insure compliance by
the Project with all Applicable Laws.



     6.10 Construction, Architectural and Engineering Contracts and Subcontracts,
Contracts.




     (a) Construction Contract. Pursuant to the Construction Contract, the
Contractor will construct the Improvements. The Construction Contract is in full
force and effect, unamended, and no default exists thereunder by any party thereto. In
the event of any conflict between the terms of the Construction Contract, any Subcontracts
and this Agreement or any other Loan Document, Borrower shall abide by and shall cause the
Contractor to act in accordance with the provisions of the Loan Documents.




     (b) Architectural Contract. Pursuant to the Architectural Contract, the
Architect has agreed to perform architectural services in connection with the design and
construction of the Improvements. The Architectural Contract is in full force and effect,
unamended, and no default exists thereunder by any party thereto.




     (c) Engineering Contract. Pursuant to the Engineering Contract, the Engineer
has agreed to perform engineering services in connection with the design and construction
of the Improvements. The Engineering Contract is in full force and effect, unamended, and
no default exists thereunder by any party thereto.




     (d) Subcontracts. Borrower has delivered to Administrative Agent true,
complete and correct copies of all Material Subcontracts that have been entered into prior
to the date hereof, if any. The Subcontracts that have been entered into prior to



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the date hereof are in full force and effect, unamended, and no default exists thereunder by
any party thereto.




     (e) Plans and Specifications. Borrower has delivered to Administrative Agent
true, complete and correct copies of each of the Plans and Specifications.




     (f) Construction Schedule. Each Construction Schedule is realistic and can
be adhered to in completing the applicable Project in accordance with the applicable Plans
and Specifications.



     6.11 Budget. Each Budget is a true, correct and complete budget with respect to all
the estimated costs of the Work (including both hard costs and soft costs associated therewith).



     6.12 Event of Default. No Event of Default or Unmatured Default has occurred.



     6.13 No Defects. To the best of the Borrower’s knowledge, there are no defects in the
design or construction of the Project which would result in a Material Adverse Occurrence on its
value, safety or intended use.



     6.14 Additional Agreements. There are no management, leasing, development or other
material agreements in existence that affect the Project, other than the Construction Contract, the
Subcontracts, the Property Management Contract, or those described in the schedule of Permitted
Exceptions or as previously delivered to Administrative Agent.



     6.15 Leases. There are no Leases for use or occupancy of any part of the Property
other than as approved or deemed approved by Administrative Agent in accordance with the terms of
Section 7.30. The Leases are (a) in full force and effect, provided however, at any one
time, Leases in an amount not greater than the Lease Breach Threshold may not be in compliance with
this provision; (b) no defaults have occurred thereunder which have been outstanding for ninety
(90) days or longer, provided however, at any one time, Leases in an amount not greater than the
Lease Breach Threshold may not be in compliance with this provision; (c) no tenant under any
Lease has a right of set-off against payment of rent due thereunder; (d) no events or circumstances
exist which, with the passage of time or the giving of notice, or both, would constitute a default
under a Lease, provided however, at any one time, Leases in an amount not greater than the Lease
Breach Threshold may not be in compliance with this provision; (e) with the exception of the
Advance Rent Payment, Borrower has not accepted prepayments of installments of rent or any other
charges under any Lease for a period of more than one (1) month in advance, provided, however, at
any one time, Borrower may accept prepaid amounts up to an amount equal to Project Prepayment
Ceiling; and (f) enforcement of the Leases by Borrower or by Administrative Agent pursuant to an
exercise of Administrative Agent’s rights under the Assignment of Leases and Rents would be subject
to no defenses of any kind.



     6.16 Fort Collins Work. No Work has been done at the Fort Collins Land in connection
with the Fort Collins Project.



     6.17 Fort Wayne Work. No Work has been done at the Fort Wayne Land in connection
with the Fort Wayne Project.



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     All representations and warranties which have been made by Borrower in this Agreement or the
other Loan Documents shall be true in all respects at the time of each Loan Advance except to the
extent that such representations and warranties specifically refer to an earlier date, in which
case, they are true and correct as of such earlier date, and in the event of any material breach,
misrepresentation or omission which is not cured within any applicable cure or grace period
provided for herein, Lenders shall have the absolute right to terminate their obligations under
this Agreement (without any obligation to refund any loan or other fees previously paid), and upon
demand by Administrative Agent, Borrower shall reimburse Lenders for the Loan Expenses, and Lenders
shall be entitled to recover from Borrower all losses and damages resulting therefrom.



SECTION 7.

BORROWER’S COVENANTS; SECURITY INTERESTS




     7.1 Manner of Construction. Borrower shall, at its sole cost and expense, cause the
construction of the Project to be diligently and expeditiously carried out, in a good and
workmanlike manner, in accordance with the Plans and Specifications and all Applicable Laws. All
materials, fixtures, equipment or articles used in the renovation, construction or equipping of the
Project shall comply with the Plans and Specifications. Without limiting the generality of the
foregoing and subject to Force Majeure, Borrower will commence construction of each Project on or
prior to the Construction Commencement Date and will cause construction to continue without
material interruption until completion in accordance with each Construction Schedule, and to be
completed in accordance with each of the Plans and Specifications and Applicable Laws prior to the
Construction Completion Date. Construction of each Project shall not be deemed to be complete
until the Consultant has certified that substantially all space located within each Project can be used
and occupied in accordance with all Applicable Laws and certificates of occupancy (or local
equivalent) have been issued therefor. Subject to Force Majeure, Borrower shall forthwith upon
completion of each of the Improvements and each portion thereof cause the same to be inspected by
each applicable governmental authority, shall cause to be corrected any defects and deficiencies
which may be disclosed by any such inspection and shall cause to be duly issued all occupancy
certificates and other licenses, permits and authorizations necessary for the operation and
occupancy of the Improvements and each portion thereof; and in any event, Borrower shall do and
perform, or cause to be done and performed, all of the foregoing acts and things and cause to be
issued and executed all such occupancy permits, licenses and authorizations on or before the
Construction Completion Date, including without limitation, correcting any defect in the
Improvements demanded by an governmental authority.



     7.2 Certificate of Completion. Within fifteen (15) days after each Project is
completed, Borrower shall deliver to Administrative Agent a certificate of the Contractor stating
that the applicable Project has been completed substantially in accordance with the applicable
Plans and Specifications and all Applicable Laws.



     7.3 Change Orders. Borrower shall not, without the prior written approval of
Administrative Agent, make or permit any modification of any Plans and Specifications, or amend or
modify the Construction Contract or Architectural Contract or enter into any change orders or
additional contracts for the performance of any portion of the Work; provided,



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however, Borrower shall have the right to enter into one or more change orders without Administrative Agent’s
consent, so long as (a) no Event of Default or Unmatured Default exists under this Agreement or any
of the other Loan Documents, (b) the change order does not individually result in a change in the
cost of constructing any Project of more than Fifty Thousand Dollars ($50,000.00), (c) the change
order does not, together with all other change orders, result in a change in the cost of
constructing the same Project of more than Two Hundred Fifty Thousand Dollars ($250,000.00), (d)
the change order does not affect any structural portion of the applicable Project, the overall
appearance of the applicable Project or the use or operation of the applicable Project in any
material respect, and (e) any increased cost resulting from the change order is paid for from the
contingency line item in the applicable Budget, a reallocation of line items in an applicable
Budget as approved by Administrative Agent in writing, a reallocation from another Project Tranche
as permitted under Section 3.1(g) or any additional funds deposited by Borrower with
Administrative Agent (in accordance with Section 3.4(c) hereof). In any event, Borrower
shall deliver to Administrative Agent copies of all such change orders not requiring Administrative
Agent’s prior approval, together with all related documentation, no later than twenty (20) days
after the execution thereof. Notwithstanding anything to the contrary set forth herein, subject to
the review of Consultant and the approval of Administrative Agent which shall not be unreasonably
withheld, Borrower shall be permitted to reallocate final savings in a particular line item of any
Budget upon completion of all work represented in such line item, such completion to be evidenced
by a certificate provided by Contractor in form and substance satisfactory to Administrative Agent.




     7.4 Compliance with Laws. Borrower shall comply or cause compliance with all
Applicable Laws, including, without limitation, laws governing the construction, development, use
and operation of the Project and ERISA. Evidence of such compliance shall be submitted to
Administrative Agent on request if Administrative Agent has reason to believe that there is an
instance of non-compliance.



     7.5 Inspection. Upon reasonable prior written or oral notice (which shall not be
required in the event of an emergency), Borrower shall permit inspection of the Property by
Administrative Agent, the Consultant and any other agent or designee of Administrative Agent. In
addition, upon reasonable prior written or oral notice (which notice shall not be required in the
event of an emergency), Borrower shall permit Administrative Agent and/or its agents and designees
access to and the right to inspect, audit and copy all books, records, contracts and other
documents and information relating to Borrower, any Guarantor or the Property. All such books,
records and accounts of operations relating to the Property shall be kept in accordance with sound
accounting practices consistently applied. Borrower shall promptly respond to any inquiry from
Administrative Agent for information with respect to the Property, which information may be
verified by Administrative Agent at Borrower’s expense; provided, however, that Lenders shall at
all times be entitled to rely upon any statements or representations made by Borrower or any agent
thereof. If Administrative Agent or the Consultant determine that any Work does not conform with
the requirements of this Agreement or the Plans and Specifications, Administrative Agent shall have
the right to require, and Borrower shall promptly perform, or cause to be performed, such
corrective work. Borrower acknowledges and agrees that any and all inspections of the Work made by
Administrative Agent, on behalf of the Lenders, the Consultant or their respective agents,
employees and/or designees shall be solely for Administrative Agent’s own information and shall not
be deemed to have been made for or on account of Borrower or



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any other party, and neither Administrative Agent nor any Lender shall have any liability or responsibility relating in any way
whatsoever to the construction of the Project, including, but not limited to, the Work thereon, the
material or labor supplied in connection therewith, and any errors, inconsistencies or other
defects in the Plans and Specifications.




     7.6 Appraisal. Borrower acknowledges and agrees that Administrative Agent may obtain
from time to time, an appraisal of all or any part of the Property prepared in accordance with
written instructions from Administrative Agent by a third-party appraiser engaged directly by
Administrative Agent. Borrower shall permit access to the Property in connection with any
appraisal and shall otherwise cooperate with any such third-party appraiser. The cost of any such
appraisal shall be borne by Borrower if such appraisal is the first appraisal since the Loan
Opening Date (other than a previous appraisal obtained after the occurrence and during the
continuance of an Event of Default) and in all events if Administrative Agent obtains such
appraisal after the occurrence of an Event of Default, and such cost is due and payable by Borrower
on demand and shall constitute an Obligation hereunder. Administrative Agent shall provide a copy
of such Appraisal to each Lender upon receipt.



     7.7 Liens.



     (a) Borrower shall not create, incur, assume or suffer to exist any mortgage, pledge, or other
lien claims or encumbrances against the Project, any Real Property or Personal Property or against
any funds due Contractor or Subcontractor other than (i) those under the Loan Documents, (ii)
Leases permitted under the Loan Documents, (iii) liens for real estate taxes and special
assessments that are not delinquent, (iv) customary utility easements that are non- blanket in
nature and are necessary for the development of the Project; or (v) mechanics and materialmen’s
liens; which Borrower in good faith desires to contest, provided however, in connection with any
such mechanic’s and mechanic’s liens, Borrower shall contest the same by appropriate legal
proceedings diligently prosecuted, but only if Borrower shall furnish to the Title Company such
security or indemnity as the Title Company requires to induce the Title Company to issue an
endorsement to the applicable Title Policy insuring over the exception created by such lien, and
provided further, that Lenders shall not be required to make any further disbursements of the Loan
until any mechanics’ lien claims have been so insured against by the Title Company.



     (b) With respect to the matters set forth in Section 7.7(a) above, if Borrower shall
(i) fail promptly to discharge any asserted liens or claims, or (ii) fail promptly to contest
asserted liens or claims or to give security or indemnity in the manner provided in Section
7.7(a) above, or (iii) having commenced to contest the same, and having given such security or
indemnity, fail to prosecute such contest with diligence, or to maintain such indemnity or security
so required by the Title Company for its full amount, or (iv) upon adverse conclusion of any such
contest, fail promptly to cause any judgment or decree to be satisfied and lien to be released,
then Administrative Agent may, but shall not be required to, procure the release and discharge of
any such claim and any judgment or decree thereon and, further, may, in its sole discretion, effect
any settlement or compromise of the same, or may furnish such security or indemnity to the Title
Company, and any amounts so expended by Administrative Agent, including premiums paid or security
furnished in connection with the issuance of any surety company bonds, shall be deemed to
constitute disbursements of the proceeds of the Loan hereunder and shall bear interest from



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the date so disbursed until paid at the Default Rate. In settling, compromising or discharging any claims for lien,
Administrative Agent shall not be required to inquire into the validity or amount of any such claim.




     7.8 Concerning the Premises.



     (a) Borrower shall at all times duly perform and observe in all material respects the terms,
provisions, conditions and agreements on its part to be performed and observed under the
Declarations, and shall not suffer or permit any default or event or default on the part of
Borrower to exist thereunder, and shall not agree or consent to, or suffer or permit, any material
modification, material amendment or termination thereof without the prior written consent of
Administrative Agent. Borrower shall promptly furnish to Administrative Agent copies of all
notices of default and other material documents and communications sent or received by Borrower
under or relating to any Declaration.



     (b) Borrower shall maintain, preserve and keep the Property in good repair, working order and
condition and shall from time to time make all necessary repairs, renewals, replacements, additions
and betterments thereto so that at all times the Property and the Improvements shall be fully
preserved and maintained.



     (c) Borrower shall not allow any Hazardous Materials to be stored, located, discharged,
possessed, managed, processed or otherwise handled on the Property, and shall comply with all
Environmental Laws applicable to the Property.



     (d) Borrower shall cause the Property to be taxed as one or more separate tax parcels which do
not include any property other than the Property.



     (e) Borrower shall ensure that under applicable law, the Property may be mortgaged, conveyed
and otherwise dealt with as a separate legal parcel.



     7.9 Financial Statements; Reports. At Administrative Agent’s request, Borrower shall
deliver or cause to be delivered to Administrative Agent each month, a detailed report showing the
progress of the Work for each Project. In addition to such progress reports and any other
financial statements required to be delivered to Administrative Agent pursuant to the provisions of
any of the other Loan Documents, Borrower will from time to time furnish to Administrative Agent
such information and reports, financial and otherwise, concerning each Obligor, the performance of
the Work for each Property and the operation of each Project as Administrative Agent reasonably
requires, including, without limitation, the following:




     (a) (i) Within one hundred twenty (120) days after the end of each calendar year, and
(ii) within sixty (60) days after the end of each calendar quarter, financial statements
for the Payment and Completion Guarantor, such financial statements to be (A) on a form
reasonably acceptable to Administrative Agent, (B) in reasonable detail; (C) prepared in
accordance with generally accepted accounting principals consistently applied; (D)
accompanied by supporting schedules, including, without limitation, all real estate
schedules; (E) certified by the Payment and Completion Guarantor as true, correct and
complete and as fairly and accurately presenting the information contained therein; and
(F) for annual statements, certified by a certified public accountant of



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recognized standing acceptable to Administrative Agent and, for quarterly statements, certified by
the Property and Completion Guarantor as fairly and accurately presenting the information
contained therein. Administrative Agent hereby acknowledges and agrees that a copy of the
annual audit report and/or the quarterly financials, as applicable, filed by the Payment
and Completion Guarantor with the Securities and Exchange Commission shall satisfy the
foregoing requirements.




     (b) Within sixty (60) days of the filing thereof (but not later than May 15 unless
proper extension requests have been filed and copies delivered to Administrative Agent
within ten (10) days of the extended filing date), copies of the federal and state income
tax returns for each Obligor, together with all supporting schedules.




     (c) Within sixty (60) days of the end of each calendar quarter, compliance
certificates from the Payment and Completion Guarantor in accordance with the terms of the
Payment and Completion Guaranty evidencing the Payment and Completion Guarantor’s
compliance with the financial covenants set forth therein.




     (d) Upon substantial completion of the Project, (i) within thirty (30) days after the
end of each fiscal quarter, an operating statement for each Project, and (ii) within
fifteen (15) days after the end of each calendar month, a lease status report for each
Project, each such delivery to be (A) in a form reasonably acceptable to Administrative
Agent, (B) in reasonable detail; (C) prepared in accordance with sound accounting
principals consistently applied; and (D) certified by Borrower as fairly and accurately
presenting the information contained therein.




     (e) Upon request from Administrative Agent, leasing updates, general building
information, projected tax expenses, tax information, applicable market data, and any
other information related to the Obligors or the Project as deemed reasonably necessary by
Administrative Agent.



     7.10 Affirmation of Representations and Warranties. Borrower agrees that all
representations and warranties of Borrower contained in Section 6 hereof shall remain true
in all material respects at all times until the Loan is repaid in full, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case, they are
true and correct as of such earlier date.



     7.11 Title. Except for (a) the Mortgage and other security for the Loan, (b) the lien
of general real estate taxes payment of which is not yet due, (c) mechanics’ liens which are
contested in the manner permitted in Section 7.7 above, (d) customary utility easements
that are non- blanket in nature and are necessary for the development of the Project; and (e) any
other Permitted Exceptions, each Property Borrower shall keep its fee simple title to the
applicable Project, and in the case of the Fort Collins Property, the leasehold interest in the
Fort Collins Real Property, free and clear of all liens, claims and encumbrances, whether senior or
junior to or at parity with the applicable Mortgage.



     7.12 Proceedings Affecting Property. If any proceedings are filed seeking to enjoin
or otherwise prevent or declare invalid or unlawful the construction, occupancy, use, maintenance



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or operation of any Project, or any portion thereof, Borrower shall cause such proceedings to be
vigorously contested in good faith, and in the event of an adverse ruling or decision, prosecute
all allowable appeals therefrom, and shall, without limiting the generality of the foregoing,
resist the entry or seek the stay of any temporary or permanent injunction that may be entered, and
use its best efforts to bring about a favorable and speedy disposition of all such proceedings.
All such proceedings, including without limitation, all of Administrative Agent’s costs, and fees
and disbursements of Administrative Agent’s counsel in connection with any such proceedings,
whether or not Administrative Agent is a party thereto, shall be at Borrower’s expense. To the
extent that Administrative Agent incurs any such expenses, including attorneys’ fees and fees and charges
for court costs, bonds and the like, Borrower shall reimburse Administrative Agent for such
expenses within ten (10) days following the written request of Administrative Agent and the amount
due Administrative Agent shall bear interest from the date which is ten (10) days following such
written request until repaid to Administrative Agent at the Default Rate. The foregoing provisions
of this Section 7.12 shall not limit or affect the provisions of Section 8(l)
below.




     7.13 Disposal and Encumbrance of Property. Except as specifically provided for herein
(including, without limitation, the entering into any lease for Personal Property in amounts as
permitted herein) or in any of the other Loan Documents, Borrower shall not, without Administrative
Agent’s prior written consent (unless such consent is not required, as expressly provided in the
Loan Documents), suffer, permit or enter into any agreement for any sale, lease, transfer, or in
any way encumber or dispose of or grant or suffer any security or other assignment (collateral or
otherwise) of or in all or any portion of any Project. Any consent given by Administrative Agent
or any waiver of default under this Section 7.13, shall not constitute a consent to, or
waiver of any right, remedy or power of Administrative Agent under any subsequent default
hereunder.



     7.14 Insurance. Borrower shall, at its expense, during the term of this Agreement,
procure and keep in force, or cause to be kept in force, the insurance coverages described in
Exhibit H attached to this Agreement and conforming to the insurance requirements contained
in the Mortgage, with the exception of those requirements specifically waived in writing by
Administrative Agent. In addition, the policies of insurance to be obtained and maintained by
Borrower under the provisions of this Loan Agreement shall be issued by responsible insurance
carriers with a Best’s rating of no less than A-/VII, licensed to do business in the applicable
State, who are acceptable to Administrative Agent and shall be in such form and with such
endorsements (including a mortgagee clause in favor of Administrative Agent), waivers and
deductibles (in no event to exceed One Hundred Thousand Dollars ($100,000.00)) as Administrative
Agent shall designate or approve. Without limitation on the foregoing:




     (a) All policies shall name Borrower as the insured, and (with the exception of
policies for workmen’s compensation insurance) shall name Administrative Agent, on behalf of
the Lenders, as mortgagee and as an additional insured (under a standard non-contributing
mortgagee protection clause, in form reasonably satisfactory to Administrative Agent,
attached to such policy or policies whenever applicable).




     (b) All policies shall contain: (1) the agreement of the insurer to give
Administrative Agent at least thirty (30) days’ written notice prior to cancellation or
non-



71









 






renewal (provided, however, that this subsection (1) will only apply to the property
insurance policies); (2) a waiver of subrogation rights against Administrative Agent and, if
available, Borrower; (3) an agreement that such policies are primary and non-contributing
with any insurance that may be carried by Administrative Agent; (4) a statement that the
insurance shall not be invalidated should any insured waive in writing prior to a loss any or all right of recovery against any party for loss accruing to the
property described in the insurance policy; and (5) if obtainable, a provision that no act
or omission of Borrower shall affect or limit the obligation of the insurance carrier to pay
the amount of any loss sustained. As of the date hereof, and subject to any changes in such
requirements which Administrative Agent may make from time to time pursuant to its rights
under this Section 7.14, each policy of property insurance hereunder shall contain a
lender’s loss payable endorsement, lender clause, or other non-contributory mortgagee clause
of similar form and substance acceptable to Administrative Agent in favor of Administrative
Agent, on behalf of the Lenders, as a mortgagee.


Borrower is hereby notified pursuant to the Illinois Collateral Protection Act (815 ILCS 180/1 et.
seq.) that unless Borrower provides Administrative Agent with evidence of the insurance coverage
required by this Agreement, Administrative Agent may purchase the required insurance at Borrower’s
expense to protect Administrative Agent’s interest, on behalf of the Lenders, in the Property.
This insurance may, but need not, protect Administrative Agent and/or the Lenders’ interests. The
coverage that Administrative Agent purchases may not pay any claim that Borrower makes or any claim
that is made against Borrower in connection with any Property. Borrower may later cancel any
insurance purchased by Administrative Agent, but only after providing Administrative Agent with
evidence that Borrower has obtained insurance as required by this Agreement. If Administrative
Agent purchases insurance for any Property, Borrower will be responsible for the costs of that
insurance, including interest at the Default Rate and any other charges Administrative Agent may
impose in connection with the placement of the insurance until the effective date of the
cancellation or the expiration of the insurance. The costs of the insurance shall be added to
Borrower’s total outstanding balance or obligation and shall constitute additional Obligations.
The costs of the insurance may be more than the cost of insurance Borrower may be able to obtain on
its own. Borrower shall pay to Administrative Agent on demand any premiums so paid with interest
thereon at the Default Rate set forth in this Agreement, from the time of the advance for such
payment by Administrative Agent, and said advance and interest shall be part of the Obligations.




     7.15 Performance of Obligations; Notice of Default. Borrower shall promptly and fully
perform and comply in all respects with the obligations, terms, agreements, provisions and
requirements of this Agreement and the other Loan Documents and will not permit to occur any
default or breach hereunder or thereunder. Borrower shall promptly give to Administrative Agent
notice of the occurrence of any Unmatured Default or of any event that would constitute a Material
Adverse Occurrence.



     7.16 Material Subcontracts. If requested by Administrative Agent, within ten (10)
days after being executed, Borrower shall deliver to Administrative Agent a copy of each Material
Subcontract entered into by the Contractor. Borrower shall not enter into any contract or
subcontract that shall cause any Project Tranche to not be In Balance.



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     7.17 Restrictions Affecting Borrower. Borrower covenants and agrees that, without the prior written consent of Administrative
Agent, there shall not occur any amendment or modification of the articles of organization,
certificate of limited partnership, or articles of incorporation, as applicable, establishing any
Borrower, any Guarantor or any Signing Entity. At all times prior to the repayment of the Loans,
(a) no Borrower shall enter into any contract or agreement for the provision of services or
otherwise with respect to any Project with any member or manager or Affiliate of any Borrower
unless such contract or agreement is an arms-length, market rate agreement and is cancelable upon
sixty (60) days written notice from any owner of the applicable Project; and (b) no Borrower,
Guarantor, or Signing Entity shall be dissolved or its existence terminated.



     7.18 Use of Receipts; Limitation on Distributions.



     (a) Borrower shall cause all rents and other income and receipts realized and received by
Borrower, if any, from and in connection with the Project to be used for the purpose of paying the
actual costs and expenses incurred by Borrower in connection with the ownership, operation,
management and repair of the Project, including without limitation, operating expenses, real estate
taxes, insurance premiums and interest on the Loans.



     (b) Each Property Borrower shall maintain all of its bank accounts at The PrivateBank and
Trust Company, and shall maintain all of its cash and investments on deposit in deposit accounts at
The PrivateBank and Trust Company.



     (c) Each Property Borrower shall deposit all Gross Revenues promptly upon receipt thereof,
into a bank account or accounts maintained by such Property Borrower at The PrivateBank and Trust
Company. As additional security for the payment and performance of all of the obligations of
Borrower under this Agreement and the other Loan Documents, each Property Borrower hereby pledges
and assigns to Administrative Agent, and grants to Administrative Agent a first lien on and a first
priority security interest in, the Gross Revenues, all of such Property Borrower’s present and
future Accounts (as defined in the Code), and the proceeds of all of the foregoing.



     (d) If any Unmatured Default or Event of Default shall occur and be continuing under this
Agreement or any of the other Loan Documents, the Property Borrowers shall not, directly or
indirectly, make any “Distribution” (as defined below). In addition, the Property Borrowers shall
not, directly or indirectly, at any time make any Distribution that would cause their cash and cash
equivalents remaining after such Distribution to be less than an amount equal to the aggregate of
(i) the total amount of the security and other deposits received by such Property Borrowers from
tenants of the Property, (ii) the total amount of accrued but unpaid real estate taxes on the
Property, based on the last full year tax bill or bills received by the Property Borrowers, or if
the Property Borrowers have not yet received a tax bill or bills on the Property on an improved
basis, based on a reasonable estimate by the Property Borrowers of the annual real taxes estate on
the Property on an improved basis, and minus any amount held in a real estate tax escrow by
Administrative Agent, and (iii) a reasonable working capital reserve. For such purposes, the term
“Distribution” means (A) any distribution of money or property to any owner of a direct or indirect interest in a Property Borrower (each an “Owner”) or to any
Affiliate of any Owner, (B) any loan or advance to any Owner or to any Affiliate of any Owner,



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(C) any payment of principal or interest on any indebtedness due to any Owner or to any Affiliate of
any Owner, and (D) any payment of any fees or other compensation to any Owner or to any Affiliate
of any Owner.




     7.19 Additional Documents. Except for (a) the Ames Condominium Declaration, (b) the
Fort Collins Plat, and (c) customary utility easements that are non- blanket in nature and are
necessary for the development of the Project, Borrower shall not execute or record any document
pertaining to, affecting or running with all or any portion of the Property, including, without
limitation, any condominium declaration or plat, without the prior written approval of
Administrative Agent of the form and substance of such documents, which approval shall not be
unreasonably withheld.



     7.20 Ineligible Securities. Borrower shall not use any portion of any Loan Advance or
Loans made hereunder to be used directly or indirectly to purchase ineligible securities, as
defined by applicable regulations of the Federal Reserve Board.



     7.21 OFAC. Borrower shall (a) ensure that no Person or entity that owns a controlling
interest in or otherwise controls Borrower is or shall be listed on the Specially Designated
Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets
Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, (b) not use
or permit the use of any proceeds of the Loans to violate any of the foreign asset control
regulations of OFAC or any enabling statute or Executive Order relating thereto, and (c) comply
with all applicable Bank Secrecy Act (“BSA”) laws and regulations, as amended.



     7.22 Loan Expenses. Borrower agrees to pay all of the Loan Expenses. Any Loan
Expenses paid by Administrative Agent and/or the Lenders shall bear interest commencing on the date
which is ten (10) days following demand for repayment thereof is made by Administrative Agent
and/or the Lenders until repaid to Administrative Agent, for the benefit of the Lenders, at the
Default Rate and shall be paid by Borrower upon demand, or may be paid by Lenders at any time by
disbursement of proceeds of the Loans. Any Loan Expenses paid by Administrative Agent and/or the
Lenders shall be reimbursed to Administrative Agent and/or the Lenders by Borrower regardless of
whether there shall be any disbursements of the Loans.



     7.23 Management. Borrower at all times shall provide for the competent and
responsible management and operation of the Property. At all times, Borrower shall cause the
Property to be managed by an Approved Manager. All management and brokerage contracts affecting
the Property shall be terminable upon sixty (60) days’ written notice without penalty or charge
(except for unpaid accrued management and brokerage fees). All management and brokerage contracts and any
material amendment, extension or substitution thereof must be approved in writing by Lender prior
to the execution of the same. In the event that Administrative Agent grants such consent, Borrower
shall cause the manager or broker under any agreement to enter into an agreement with
Administrative Agent, acceptable in form and substance to Administrative Agent, pursuant to which
said manager or broker subordinates its liens for unpaid fees to the liens of the Mortgage and the
other Loan Documents.



     7.24 Single Asset Entity. Each Property Borrower shall not hold or acquire, directly
or indirectly, any ownership interest (legal or equitable) in any real or personal property other
than



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the applicable Property and/or relating thereto, or become a shareholder of or a member or
partner in any entity which acquires any property other than the applicable Property, until such
time as the Obligations have been fully repaid. The organizational documents of each Property
Borrower shall limit its purpose to the acquisition, operation, management and disposition of the
applicable Property and/or matters relating thereto, shall adopt the covenants contained in this
Section 7.24, and such purposes shall not be materially amended without the prior written
consent of Administrative Agent, which consent shall not be unreasonably withheld. Each Property
Borrower shall:





     (a) Maintain its assets, accounts, books, records, financial statements, stationery,
invoices, and checks separate from and not commingled with any of those of any other
person or entity;




     (b) Conduct its own business in its own name, pay its own liabilities out of its own
funds, allocate fairly and reasonably any overhead for shared employees and office space,
and maintain an arm’s length relationship with its Affiliates;




     (c) Hold itself out as a separate entity, correct any known misunderstanding
regarding its separate identity, and not make any distributions which would cause it to
fail to maintain adequate capital in light of its contemplated business operations, and
observe all organizational formalities;




     (d) Not guarantee or become obligated for the debts of any other entity or person or
hold out its credits as being available to satisfy the obligations of others, including
not acquiring obligations or securities of its partners, members or shareholders, except
in connection with the Loan;




     (e) Not pledge its assets for the benefit of any other entity or person or make any
loans or advances to any person or entity, except in connection with the Loan;




     (f) Not enter into any contract or agreement with any Affiliate, except upon terms
and conditions that are intrinsically fair and substantially similar to those that would
be available on an arms-length basis with third parties other than any Affiliate;




     (g) Not and shall not permit any constituent party of such Property Borrower to seek
the dissolution or winding up, in whole or in part, of such Property Borrower and/or such constituent party of such Property Borrower, nor merge with or
be consolidated into any other entity; and




     (h) Has maintained and will maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets from those
of any constituent party of such Property Borrower, any Affiliate, Guarantor or any other
person;



     7.25 No Debt. Except for the Obligations, no Property Borrower shall incur or become
liable for any other indebtedness other than customary trade payables paid within sixty (60) days
after they are incurred or unsecured equipment leases in the ordinary course of business.



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     7.26 Use of Loan Advances. Borrower covenants and agrees that all Loan Advances
to be made hereunder by Lenders shall be used solely for the payment (or reimbursement to others
for payment) of the bills for the labor and materials used in the performance of the Work for which
such Loan Advances were requested by Borrower, and for the payment of the other items of Project
Cost for which such Loan Advances were requested by Borrower (no Project Cost shall include
expenses relating to any development, construction, operating or other cost attributable to any
project other than the Project specifically described in this Agreement), and for no other purpose
whatsoever; however, nothing herein shall impose upon Administrative Agent or any Lender any
obligation whatsoever to see to the proper application of any such monies by Borrower. Whenever so
requested by Administrative Agent, Borrower shall promptly furnish Administrative Agent written
evidence reasonably satisfactory to Administrative Agent that all monies theretofore advanced by
the Lenders pursuant to this Agreement have actually been or will be paid or applied in payment of
the cost of performance of the Work and in payment of the other items of Project Cost for which
such funds were advanced by the Lenders, and until such evidence is produced, at the option of
Administrative Agent, no future or additional payments or Loan Advances need be made hereunder.



     7.27 Budget. Borrower shall not amend any Budget without Administrative Agent’s prior
written consent, except as expressly permitted in this Agreement. Borrower shall not reallocate
any line items within any Budget unless Borrower can demonstrate to Administrative Agent’s
satisfaction that (i) sufficient funds remain in the line item from which the amount is to be
reallocated to pay all of the applicable Project Costs which may be paid from that line item; and
(ii) no line items in the applicable Project Budget (other than the line item to which the
reallocation is sought) are required, in Administrative Agent’s judgment, to be increased.
Administrative Agent agrees not to unreasonably withhold or delay any Budget line item reallocation
requests from Borrower under this Agreement.



     7.28 Loan In Balance. Borrower shall maintain each Project Tranche In Balance at all
times.



     7.29 Development Fee. Borrower shall not disburse a development fee in excess of the
amount set forth in each Budget and may not pay or disburse any development fee at any time that an
Event of Default or any Unmatured Default exists.



     7.30 Approved Leases. Borrower shall not enter into any tenant lease of space in any
Improvements unless approved or deemed approved by Administrative Agent. Borrower’s standard form
of tenant lease, and any revisions thereto, must have the prior written approval of Administrative
Agent, provided however, the lease forms which have been provided to Administrative Agent for each
Project have been approved as satisfactory. Administrative Agent shall be “deemed” to have approved any tenant lease that (a) is on the standard form lease approved by Administrative
Agent, with no material deviations except as approved by Administrative Agent; (b) is legally
binding and fully executed; (c) contains a satisfactory parental or other acceptable guarantee; (d)
provides for an Advance Rent Payment and the receipt thereof in an amount to be determined by
Borrower for the purpose of cash testing, (e) is entered into in the ordinary course of business
with a bona fide unrelated third party tenant



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(except as otherwise permitted in the ordinary course of the student housing business), and Borrower, acting in good faith and exercising due diligence,
has determined that the tenant is financially capable of performing its obligations under the
lease; (f) except as otherwise permitted in the ordinary course of the student housing business,
reflects an arms-length transaction at then current market rate for comparable space; (g) is for a
twelve (12) month term, provided however, not more than fifteen percent (15%) of tenant leases at a
Project may be for less than a twelve (12) month term if executed following the commencement of
classes in the applicable year; and (h) is expressly subordinate to the applicable Mortgage.
Borrower shall provide to Administrative Agent a correct and complete copy of each tenant lease,
including any exhibits, and each guarantee thereof (if any), prior to execution unless the lease in
question meets the foregoing requirements for “deemed” approval by Administrative Agent. Borrower
shall, throughout the term of this Agreement, pay all reasonable costs incurred by Administrative
Agent in connection with Administrative Agent’s review and approval of tenant leases and each
guarantee thereof (if any), including reasonable attorneys’ fees and costs.




     7.31 Collateral Assignment of Plans, Permits and Contracts. As additional security
for the payment and performance of all of the Obligations, each Property Borrower hereby pledges
and assigns to Administrative Agent, and grants to Administrative Agent a first lien on and a first
priority security interest in, (a) all present and future Plans and Specifications for the
construction of the Improvements; (b) all present and future applications, permits, licenses and
approvals between such Property Borrower and others, or given or to be given to such Property
Borrower by governmental authorities, relating to the Improvements, together with all of such
Property Borrower’s rights, options and privileges thereunder; and (c) all present and future
architectural, engineering and construction contracts relating to Improvements.



     7.32 Security Interest Matters. This Agreement is intended to be a security agreement
under the Code for the purpose of creating the security interests provided for herein. Borrower
shall execute and deliver such additional security agreements and other documents as the Lender
shall from time to time request in order to create and perfect such security interests.



     7.33 Commitments. Borrower shall at all times duly perform and observe all of the
terms, provisions, conditions and agreements on its part to be performed and observed under any
present or future commitment for take-out financing for the Property and the Improvements, and
shall not suffer or permit any default or event of default to exist under any such commitment, and
shall not agree or consent to, or suffer or permit, any termination, modification or amendment of
any such commitment. As additional security for the payment and performance of all of the obligations
of Borrower under this Agreement and the other Loan Documents, Borrower hereby pledges and assigns
to Administrative Agent for the benefit of the Lenders, and grants to Administrative Agent a first
lien on and a first priority security interest in, all such present and future commitments for
take-out financing for the Property and the Improvements and all loan proceeds payable under all
such commitments.



     7.34 Aggregate Debt Service Coverage Ratio. Commencing on September 1, 2011 and as of
each Determination Date until September 1, 2012, the Project shall satisfy an Aggregate Debt
Service Coverage Ratio of no less than 1.10 to 1.0. In order to evidence the satisfaction of such
Aggregate Debt Service Coverage Ratio, Borrower shall deliver to Administrative Agent within thirty
(30) days after the end of each calendar quarter, an executed Debt Service Coverage



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Test for each Project on the form attached hereto as Exhibit I and certified by the Borrower as true,
correct and complete and as fairly and accurately presenting the information contained therein. In
the event this Aggregate Debt Service Coverage Ratio is not met, Borrower may satisfy this
Aggregate Debt Service Coverage Ratio by making a payment of principal on the Loans in an amount
sufficient to bring this Aggregate Debt Service Coverage Ratio into compliance as determined by the
Administrative Agent in its sole discretion, provided however, such payment shall be received by
Administrative Agent within thirty (30) days after the end of the applicable calendar quarter.




     7.35 Project Debt Service Coverage Ratio.




     (a) Commencing on September 1, 2011 and as of each Determination Date until September
1, 2012, each Project shall satisfy an Implied Debt Service Coverage Ratio of no less than
1.00 to 1.0. In order to evidence the satisfaction of such Implied Debt Service Coverage
Ratio, Borrower shall deliver to Administrative Agent within thirty (30) days after the
end of each calendar quarter, an executed Debt Service Coverage Test for each Project on
the form attached hereto as Exhibit I and certified by the Borrower as true,
correct and complete and as fairly and accurately presenting the information contained
therein. In the event this Implied Debt Service Coverage Ratio is not met, Borrower may
satisfy this Implied Debt Service Coverage Ratio by making a payment of principal on the
Loans in an amount sufficient to bring this Impaled Debt Service Coverage Ratio into
compliance as determined by the Administrative Agent in its sole discretion, provided
however, such payment shall be received by Administrative Agent within thirty (30) days
after the end of the applicable calendar quarter.




     (b) Commencing on September 1, 2012 and as of each Determination Date thereafter,
each Project shall satisfy an Actual Debt Service Coverage Ratio of no less than 1.25 to
1.0. In order to evidence the satisfaction of such Actual Debt Service Coverage Ratio,
Borrower shall deliver to Administrative Agent within thirty (30) days after the end of
each calendar quarter, an executed Debt Service Coverage Test for each Project on the form
attached hereto as Exhibit I and certified by the Borrower as true, correct and
complete and as fairly and accurately presenting the information contained therein. In
the event this Actual Debt Service Coverage Ratio is not met, Borrower may satisfy this
Actual Debt Service Coverage Ratio by making a payment of principal on the Loans in an amount sufficient to bring this Actual Debt Service Coverage Ratio
into compliance as determined by the Administrative Agent in its sole discretion, provided
however, such payment shall be received by Administrative Agent within thirty (30) days
after the end of the applicable calendar quarter.



     7.36 Rate Management Agreement. On or prior to December 19, 2010, Borrower shall
enter into and deliver to Administrative Agent, a Rate Management Agreement in the amount of the
Commitments for a period lasting until at least the Initial Maturity Date and containing terms
based upon the applicable draw schedules previously delivered and approved by Administrative Agent.



     7.37 Fort Collins Ground Lease.



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     (a) Borrower will promptly pay or cause to be paid, when due and payable, the rent
and all other sums and charges mentioned in and made payable by Fort Collins Borrower
under the Fort Collins Ground Lease.




     (b) In addition, Fort Collins Borrower:




     (i) will promptly and diligently perform and observe all of the terms,
covenants and conditions required to be performed and observed by Fort Collins
Borrower as tenant under the Fort Collins Ground Lease, within the periods provided
in the Fort Collins Ground Lease; and




     (ii) will enforce each covenant or obligation of the Fort Collins Ground Lease
in accordance with its terms; and




     (iii) will do all things necessary to preserve and to keep unimpaired its
rights under the Fort Collins Ground Lease; and




     (iv) will not terminate the Fort Collins Ground Lease and will not surrender
the premises which are the subject of the Fort Collins Ground Lease; and




     (v) will exercise any and all renewal or extension options provided to Fort
Collins Borrower under the Fort Collins Ground Lease.




     (c) Fort Collins Borrower shall not acquire the fee interest in the demised premises
without the prior written approval of Administrative Agent. In the event that Fort
Collins Borrower acquires fee title to the demised premises, Fort Collins Borrower shall
promptly execute, acknowledge and deliver such instruments, documents and agreements as
may be required by Administrative Agent to create, maintain, affirm, and perfect
Administrative Agent’s interest in the demised premises and any other collateral,
including without limitation, a deed of trust to confirm Fort Collins Borrower’s right,
title and interest in and to the fee title of the demised premises.




     (d) Borrower shall promptly notify Administrative Agent in writing of any material
default by the Fort Collins Ground Lessor in the performance or observance of any of the
terms, covenants or conditions on the part of the Fort Collins Ground Lessor to be
performed or observed under the Fort Collins Ground Lease.




     (e) Borrower shall (i) promptly notify Administrative Agent in writing of the receipt
by any Borrower of any notice from the Fort Collins Ground Lessor of any default by Fort
Collins Borrower in the performance of observance of any of the terms, covenants, or
conditions on the part of Fort Collins Borrower to be performed or observed under the Fort
Collins Ground Lease; (ii) promptly notify Administrative Agent in writing of the receipt
by Fort Collins Borrower of any notice from the Fort Collins Ground Lessor of the
termination of the Fort Collins Ground Lease pursuant to the provisions of the Fort
Collins Ground Lease; and (iii) promptly cause a true copy of each such notice received by
any Borrower from the Fort Collins Ground Lessor under the Fort Collins Ground Lease to be
delivered to Administrative Agent.



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     (f) Borrower will, within thirty (30) days after receipt of the written request from
Administrative Agent (but, so long as no Unmatured Default or Event of Default has
occurred and is continuing, no more than twice during any calendar year), use reasonable
efforts to obtain (1) from the Fort Collins Ground Lessor and deliver to Administrative
Agent an estoppel certificate in form and substance satisfactory to Administrative Agent
stating that the Fort Collins Ground Lease is in full force and effect, is unmodified,
that no notice of termination thereon has been served on Fort Collins Borrower, stating
the date to which the rent has been paid, stating whether there are any defaults to its
knowledge thereunder and specifying the nature of such defaults, if any and containing
such other representations, warranties and covenants as Administrative Agent may
reasonably request, and (2) from any party holding a fee deed of trust on the land which
comprises the demised premises, an estoppel and non-disturbance agreement in form and
substance satisfactory to Administrative Agent.




     (g) Upon the request of Administrative Agent, Fort Collins Borrower shall cooperate
with Administrative Agent and the Lenders and, to the extent such conditions have not
already been satisfied by the Fort Collins Ground Lessor’s execution and delivery of the
Fort Collins Ground Lease Estoppel, do such acts as are within its rights and powers to
cause Administrative Agent or its successor on behalf of the Lenders to be deemed a
“leasehold mortgagee” or its equivalent under the Fort Collins Ground Lease during all
times prior to the repayment of the Loans in full.




     (h) Borrower will furnish Administrative Agent: (i) upon demand, proof of payment of
all items which are required to be paid by Fort Collins Borrower pursuant to the Fort
Collins Ground Lease, and (ii) all information that Administrative Agent may reasonably
request from time to time concerning the Fort Collins Ground Lease and Fort Collins
Borrower’s compliance with the Fort Collins Ground Lease.




     (i) Fort Collins Borrower shall not, without the prior written consent of
Administrative Agent: (i) consent to or agree to, cause or permit to occur any waiver or
modification, amendment or cancellation of any provision of the Fort Collins Ground Lease; (ii) consent to or agree to, cause or permit to occur the subordination of the
Fort Collins Ground Lease to any deed of trust of the fee interest of the Fort Collins
Ground Lessor in the land or other lien encumbering (or that may in the future encumber)
the estate of the Fort Collins Ground Lessor under the Fort Collins Ground Lease in any
premise(s) demised to Fort Collins Borrower thereunder.




     (j) Borrower shall promptly execute, acknowledge and deliver, on request of
Administrative Agent, such instruments as Administrative Agent may reasonably request and
deem useful or required to permit Administrative Agent to cure any default under the Fort
Collins Ground Lease or permit Administrative Agent to take such other action as
Administrative Agent considers desirable to cure or remedy the matter in default and
preserve the interest of Administrative Agent in the Fort Collins Ground Lease and/or the
security interest of Administrative Agent under the Loan Documents with respect to the
Fort Collins Project.



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     (k) If Fort Collins Borrower shall be in default beyond any applicable notice and
grace period under the Fort Collins Ground Lease, and/or upon the occurrence and
continuance of an Event of Default hereunder, or upon the failure of Borrower to take any
action under this section, then, subject to the terms of the Fort Collins Ground Lease,
Administrative Agent on behalf of the Lenders shall have the right (but not the
obligation), to cause any default or defaults under the Fort Collins Ground Lease to be
remedied and otherwise exercise any and all rights of Fort Collins Borrower under the Fort
Collins Ground Lease, as Administrative Agent may deem necessary to prevent or cure any
default, and Administrative Agent shall have the right to enter all or any portion of the
demised premises at such times and in such manner as Administrative Agent deems necessary,
to prevent or to cure any such default. Without limiting the foregoing, upon any such
default, Borrower shall promptly execute, acknowledge and deliver to Administrative Agent
such instruments as may reasonably be required to permit Administrative Agent to cure any
default under the Fort Collins Ground Lease or permit Administrative Agent to take such
other action as Administrative Agent may deem necessary to enable Administrative Agent to
cure or remedy the matter in default and preserve the security interest of Administrative
Agent under the Loan Documents with respect to the Fort Collins Project. Fort Collins
Borrower irrevocably appoints Administrative Agent as its true and lawful attorney-in-fact
to do, in its name or otherwise, if an Event of Default or Unmatured Default has occurred
and is continuing, any and all acts and to execute any and all documents that
Administrative Agent deems necessary to preserve any rights of Fort Collins Borrower under
or with respect to the Fort Collins Ground Lease, including, without limitation, the right
to effectuate any extension or renewal of the Fort Collins Ground Lease, or to preserve
any rights of Fort Collins Borrower whatsoever in respect of any part of the Fort Collins
Ground Lease (and the above powers granted to Administrative Agent are coupled with an
interest and shall be irrevocable). The actions or payments of Administrative Agent to
cure any default by Fort Collins Borrower under the Fort Collins Ground Lease shall not
remove or waive, as between Borrower and the Lenders, the default that occurred under this
Agreement by virtue of the default by Fort Collins Borrower under the Fort Collins Ground
Lease. All sums expended by Administrative Agent to cure any such default shall be paid
by Borrower to Administrative Agent, upon demand, with interest on such sum at the Default Rate from the date such sum is expended to and including the date
the reimbursement payment is made to Administrative Agent. All such indebtedness shall be
deemed to be secured by the Loan Documents.




     (l) Promptly upon receipt by Borrower, Borrower shall deliver to the Fort Collins
Ground Lessor, if requested by Administrative Agent or any successor, written notice of
the identity of each successor to Administrative Agent.




     (m) Borrower, promptly upon learning that the Fort Collins Ground Lessor has failed
to perform the terms and provisions under the Fort Collins Ground Lease and promptly upon
learning of a rejection or disaffirmance or purported rejection or disaffirmance of the
Fort Collins Ground Lease pursuant to any state or federal bankruptcy law, shall notify
Administrative Agent thereof. Promptly after execution of any amendment to the Fort
Collins Deed of Trust, Borrower shall notify the Fort Collins Ground Lessor, in a form
satisfactory to Administrative Agent of the execution



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and delivery of the Fort Collins Deed of Trust or such amendment. Administrative Agent shall have the right, but not the
obligation, to give the Fort Collins Ground Lessor, at any time any notice described in
this subsection or otherwise relating to the Loan.




     (n) Fort Collins Borrower shall promptly notify Administrative Agent of any request
that any party to the Fort Collins Ground Lease makes for arbitration or other dispute
resolution procedure pursuant to the Fort Collins Ground Lease and of the institution of
any such arbitration or dispute resolution. Fort Collins Borrower hereby authorizes
Administrative Agent to participate in any such arbitration or dispute resolution but such
participation shall not, unless an Event of Default exists, be to the exclusion of Fort
Collins Borrower. Fort Collins Borrower shall promptly deliver to Administrative Agent a
copy of the determination of each such arbitration or dispute resolution mechanism.




     (o) If Administrative Agent or its designee shall acquire or obtain a new ground
lease following a termination of the Fort Collins Ground Lease as a result of any action,
omission or election of Fort Collins Borrower, then Fort Collins Borrower shall have no
right, title or interest whatsoever in or to such new ground lease, or any proceeds or
income arising from the estate arising under any such new ground lease, including from any
sale or other disposition thereof. Administrative Agent or its designee shall hold such
new ground lease free and clear of any right or claim of Fort Collins Borrower.



     7.38 Consent and Subordination to Condominium and Declaration. Administrative Agent
shall, upon Borrower’s written request, consent and subordinate the lien of the Ames Mortgage to
the Ames Condominium Declaration and shall execute the appropriate instruments (satisfactory to
Administrative Agent in all respects) in recordable form to effect such consent and subordination
thereto, upon the satisfaction of the following conditions, as determined by Administrative Agent
(singly and collectively, the “Condominium Conditions”):




     (a) There exists no Unmatured Default or Event of Default;




     (b) Administrative Agent shall have received the final Ames Condominium Declaration,
which shall be in form and substance satisfactory to the Administrative Agent and in proper
form for recording or filing, as necessary, in the appropriate registry of deeds. Borrower
shall after recording, deliver to Administrative Agent a certified copy of the Ames
Condominium Declaration;




     (c) Administrative Agent shall have received the unconditional agreement by the Title
Company to issue an ALTA 4.1 Endorsement to the applicable Title Policy insuring the Ames
Mortgage upon subordination of the lien of the Ames Mortgage to the Ames Condominium
Declaration; and




     (d) Administrative Agent shall have received such other documents, certificates,
opinions or assurances as Administrative Agent may reasonably request.



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     7.39 Condominium Covenants.(a) Regarding the contemplated development,
ownership, and operation of the Ames Project, and without limiting the generality of the
other covenants and agreements of the Borrower hereunder and/or under any other Loan
Document, Ames Borrower hereby covenants and agrees with the Administrative Agent and the
Lenders as follows (herein, singly and collectively, the “Condominium Covenants”):




     (b) On or before December 31, 2010, Ames Borrower shall submit the Ames Project,
together with all of the Ames Improvements constructed or to be constructed thereon, to the
provisions of the Condominium Law and will satisfy all of the requirements thereof and of
any other applicable Laws or restriction necessary to create the Condominium as a valid
condominium regime in respect of the Ames Project and Ames Improvements; provided, however
that Ames Borrower will not record or file the Ames Condominium Declaration with the
appropriate registry of deeds without Administrative Agent’s prior written consent and
subordination as provided for in Section 7.38;




     (c) After the recording of the Ames Condominium Declaration and construction of the
Ames Improvements, the condominium association which shall be created by the Ames
Condominium Declaration shall have furnished to Administrative Agent, at no cost or expense
to Administrative Agent, the insurance required by the Ames Condominium Declaration, which
shall name Administrative Agent, said condominium association, and Ames Borrower, as their
respective interests may appear, as the insureds, as permitted in the Ames Condominium
Declaration, in such amounts as Administrative Agent may from time to time reasonably
require and covering all of the Ames Improvements; said fire insurance shall at all times
comply with the applicable conditions contained in the Ames Mortgage and elsewhere in this
Agreement;




     (d) Ames Borrower shall duly perform or cause to be duly performed all obligations of
developers or sponsors, or declarant under the Ames Condominium Declaration, and do or cause to be done all things necessary to operate and maintain
the Condominium for the purpose for which it was intended;




     (e) Ames Borrower shall fully and faithfully keep, pay, and perform each and every
covenant, agreement, and provision in the Ames Condominium Declaration, the Condominium Law,
and all other applicable Laws on the part of Ames Borrower to be kept and performed;




     (f) Ames Borrower shall promptly pay as the same become due and payable the share of
Ames Borrower as owner of all applicable Condominium Units, and subject to the provisions
hereof or the other Loan Documents, of common expenses and all assessments as required by
the Ames Condominium Declaration, including reserves therefor, and to promptly upon demand
exhibit to Administrative Agent receipts for all such payments;




     (g) Ames Borrower shall promptly deliver to Administrative Agent a true and correct
copy of each and every notice of default received by Ames Borrower with



83









 







respect to any obligation of Ames Borrower under the provisions of said Condominium Law and/or the Ames
Condominium Declaration;




     (h) Ames Borrower shall not, except with the prior written consent of Administrative
Agent in each instance, (1) vote for, consent to, or enter into any material modification
of, material amendment to, or relaxation of the enforcement of, any provision of the Ames
Condominium Declaration, (2) vote to change the percentage interest in the common areas of
the Condominium Units or to remove the Condominium from the provisions of the said
Condominium Law, (3) vote to allot compensation to members of the association managing board
or officers who are Affiliates or affiliated with Ames Borrower, (4) in the event of damage
to or destruction of the condominium buildings or a partial taking by condemnation, vote not
to restore the condominium property, and/or (5) vote to alter or improve the common areas
for a proposed cost in excess of five (5%) percent of the last preceding annual budget
approved by the association managing board;




     (i) Ames Borrower shall not, in each and every case in which, under the provisions of
the Ames Condominium Declaration or the Condominium Law the consent or vote of fifty percent
(50%) or more of the owners of Condominium Units is required, vote or give such consent
without, in each and every case, the prior written consent of Administrative Agent;




     (j) Within ten (10) days after issuance by the association managing board, Ames
Borrower shall furnish to Administrative Agent a copy of (i) all assessments issued by the
association managing board against the Ames Project, and (ii) the annual budget issued by
the association managing board;




     (k) Ames Borrower shall defend, indemnify and save harmless Administrative Agent, and
all those claiming by, through or under Administrative Agent (including, without limitation,
the Lenders), from and against any loss, damage, cost, expense or other liability of any nature whatsoever arising out of any obligations of
the developer and declarant of the Condominium, to owners of the Condominium Units or
otherwise, including, without limitation, liability arising under Condominium Law; and




     (l) In the event of any casualty loss to the said Condominium or to any Condominium
Unit therein, Ames Borrower shall promptly notify the Administrative Agent of such loss.
Administrative Agent may elect to vote in place and stead of Ames Borrower with respect to
insurance under the terms of the Ames Condominium Declaration and in order to effectuate the
foregoing, Ames Borrower hereby irrevocably appoints the Administrative Agent as Ames
Borrower’s agent to so act with respect to said right to vote, said agency being coupled
with an interest. Ames Borrower agrees that written notice from the Administrative Agent of
such election in such event received by Ames Borrower not less than twenty-four (24) hours
before such vote is to be deemed conclusive evidence as to such right to vote. Ames
Borrower will make all advances as required by the Condominium Declaration for repair and
restoration due to inadequacy of insurance, provided that it has been voted to repair and
restore the Condominium except to the extent that such inadequacy is caused by the delivery
of the proceeds of such



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insurance to Administrative Agent. Ames Borrower covenants and agrees that in the event Ames Borrower receives any funds, including but not limited to,
insurance proceeds arising from damages to the Ames Project or the common areas and
facilities, whether from casualty or otherwise, Ames Borrower shall assign any such funds to
Administrative Agent to the extent necessary to discharge Ames Borrower’s obligations to
Administrative Agent hereunder, such funds to be applied or disbursed as provided for
herein, unless otherwise provided in the Loan Agreement.




     (m) All sums expended or otherwise incurred by Administrative Agent on account of any
failure by Ames Borrower to pay or perform the Condominium Covenants, including without
limiting the generality of the foregoing reasonable attorneys’ fees and/or costs incurred in
connection with the care and management of the Ames Project and/or the Condominium, shall be
included within the Obligations and secured by the Mortgage and the other Loan Documents,
and shall accrue interest as the Default Rate as provided for in this Agreement.
Administrative Agent may, but shall not be obligated to cure or remedy any default by Ames
Borrower under the Ames Condominium Declaration. Without limiting the other rights and
remedies of Administrative Agent and/or the Lenders hereunder, Ames Borrower hereby
authorizes the Administrative Agent and its authorized agents at any reasonable time to
enter the Ames Project and to perform such acts as may be necessary to cure or remedy any
such defaults relative to the Condominium Covenants. Administrative Agent may recover upon
demand all reasonable costs and expenses, including attorneys’ fees, paid or incurred in
connection with any defaults hereunder or incurred in the care and management of the Ames
Project.



     7.40 Fort Wayne Environmental Condition.. In connection with the Work to be done in
connection with the Fort Wayne Improvements, Fort Wayne Borrower shall either (i) use the fill
material located on the north east and north central portions of the Fort Wayne Land as fill
material beneath the proposed paved
parking areas or (ii) dispose of such fill material in accordance with Applicable Law. On or
prior to December 19, 2010, Fort Wayne Borrower shall (a) provide evidence to Administrative Agent
identifying the location of the contaminated material, or (b) deliver documentation by a landfill
or a depository evidencing the transfer of the contaminated material to such landfill or a
depository.




     7.41 Clarksville Environmental Condition. On or prior to December 19, 2010,
Clarksville Borrower shall provide an amendment to the Phase I Environmental Assessment dated as of
October 14, 2010 which amendment shall verify the collateral size and boundaries contained in the
Survey of the Clarksville Land.



     7.42 Fort Wayne Endorsements. On or prior to the fifteenth (15th) day of
each month until the Initial Advance of the Fort Wayne Tranche, Borrower shall deliver to
Administrative Agent an endorsement to the Title Policy insuring the Fort Wayne Mortgage which
endorsement shall update such Title Policy to such date and insure the lien of the Fort Wayne
Mortgage to be superior to all defects in title other than the applicable Permitted Exceptions and
other exceptions hereafter approved by Administrative Agent in writing.



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SECTION 8.

EVENTS OF DEFAULT




     The occurrence of any one or more of the following shall constitute an “Event of Default”:




     (a) Failure by Borrower or any other Obligor to make: (i) any payment of principal or
interest hereunder or under the Notes when due, or (ii) any other payment under the Loan
Documents within five (5) days of the date when due or, if no date is stated, five (5)
days after written demand (or such shorter period as may be expressly provided for herein
or therein);




     (b) Failure by Borrower to perform or cause to be performed any other obligation or
observe any other condition, covenant, term, agreement or provision required to be
performed or observed by Borrower contained in this Agreement and not specifically
referred to elsewhere in this Section 8; provided, however, that if such failure
by its nature can be cured, then so long as the continued operation and safety of each
Project, and the priority, validity and enforceability of the liens created by this
Agreement, each Mortgage or any of the other Loan Documents and the value of each Property
is not materially impaired, threatened or jeopardized, Borrower shall have a period (“Cure
Period”) of thirty (30) days after Borrower obtains actual knowledge of such failure or
receives written notice of such failure to cure the same and an Event of Default shall not
be deemed to exist during the Cure Period (provided, however, such period shall be limited
to ten (10) days if such failure can be cured by the payment of money), provided further
that if such failure cannot be cured by the payment of money and Borrower commences to
cure such non-monetary failure during the Cure Period and is diligently and in good faith
attempting to effect such cure, the Cure Period shall be extended for such non-monetary failure for thirty (30) additional days, but in no
event shall the Cure Period be longer than sixty (60) days in the aggregate;




     (c) Any representation or warranty contained in this Agreement or any other Loan
Documents, or of any statement or certification as to facts delivered to Administrative
Agent by or on behalf of Borrower or the Guarantor shall prove to have been materially
inaccurate or untrue in any material respect when made, provided however, that if such
representation or warranty can be cured, then so long as the continued operation and
safety of each Project, and the priority, validity and enforceability of the liens created
by this Agreement, each Mortgage or any of the other Loan Documents and the value of each
Property is not materially impaired, threatened or jeopardized, Borrower shall have a
period of thirty (30) days after Borrower receives written notice of such inaccuracy or
untruth and an Event of Default shall not be deemed to exist during such period (provided,
however, such period shall be limited to ten (10) days if such failure can be cured by the
payment of money);




     (d) Subject to Force Majeure, a discontinuance of the construction of the Work in
connection with any Project for a period of fifteen (15) consecutive days (unless
otherwise approved by Administrative Agent), or any material failure to adhere to any
Construction Schedule, regardless of cause, the result of which may be, in



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Administrative Agent’s sole judgment, that the Work in connection with such Project will not be
substantially completed prior to the Construction Completion Date;




     (e) Subject to Force Majeure, the conditions set forth in Section 7.1 have
not been satisfied by the Construction Completion Date, provided, however, so long as the
continued operation and safety of each Project, and the priority, validity and
enforceability of the liens created by this Agreement, each Mortgage or any of the other
Loan Documents and the value of each Property is not materially impaired, threatened or
jeopardized, Borrower shall have until September 15, 2011 to cure the same and an Event of
Default shall not be deemed to exist during such period;




     (f) Failure by Borrower to deposit with Administrative Agent or invest in any Project
in the manner permitted herein funds required to maintain each Project Tranche In Balance
within the time and in the manner set forth in Section 3.4(c) or provide the funds
required to maintain the Interest Reserve within the time and manner set forth in
Section 3.4(c);




     (g) If there occurs a Material Adverse Occurrence;




     (h) The termination of any Construction Contract without Administrative Agent’s prior
written consent;




     (i) Borrower, any Guarantor or any successors or permitted assigns of it, shall:




     (i) file a voluntary petition in bankruptcy or an arrangement or reorganization
under any federal or state bankruptcy, insolvency or debtor relief law or statute
(hereinafter referred to as a “Bankruptcy Proceeding”);




     (ii) file any answer in any Bankruptcy Proceeding or any other action or
proceeding admitting insolvency or inability to pay his, her or its debts;




     (iii) fail to oppose, or fail to obtain a vacation or stay of, any involuntary
Bankruptcy Proceeding within sixty (60) days after the filing thereof;




     (iv) solicit or cause to be solicited petitioning creditors for any involuntary
Bankruptcy Proceeding against Borrower or any Guarantor;




     (v) be granted a decree or order for relief, or be adjudicated a bankrupt or
declared insolvent in any Bankruptcy Proceeding, whether voluntary or involuntary;




     (vi) have a trustee or receiver appointed for or have any court take
jurisdiction of its property, or the major part thereof, or all of any portion of
the Property, in any voluntary or involuntary proceeding for the purpose of
reorganization, arrangement, dissolution or liquidation, and, with respect to an
involuntary proceeding only, such trustee or receiver is not discharged or such



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jurisdiction is not relinquished, vacated or stayed on appeal or otherwise, within
sixty (60) days after the commencement thereof;




     (vii) make an assignment for the benefit of creditors;




     (viii) consent to any appointment of a receiver or trustee or liquidator of all
of its property, or the major part thereof, or all or any portion of any Property;
or




     (ix) have an attachment or execution levied with respect to, or other judicial
seizure be effected for, all or substantially all of its assets or all or any
portion of any Property, or the placing of any attachment, levy of execution,
charging order, or other judicial seizure on the interest of the parent of Borrower;




     (j) Borrower intentionally causes or knowingly permits any of the Work in connection
with any Project to be performed in a manner which is materially contrary to any of the
Plans and Specifications or any provisions of this Agreement or the other Loan Documents;




     (k) Any sale, transfer, lease, assignment, conveyance, financing, lien, encumbrance
or other transaction made in violation of Section 7.13 or Section 7.18
above or any Mortgage, provided, however, that if such default by its nature can be cured,
then so long as the continued operation and safety of each Project, and the priority,
validity and enforceability of the liens created by this Agreement, each Mortgage or any
of the other Loan Documents and the value of each Property is not materially impaired,
threatened or jeopardized, Borrower shall have a Cure Period of thirty (30) days after
Borrower obtains actual knowledge of such failure or receives written notice of such
failure to cure the same and an Event of Default shall not be deemed to exist during the
Cure Period (provided, however, such period shall be limited to ten (10) days if such
failure can be cured by the payment of money);




     (l) The entry of any order enjoining or otherwise preventing or declaring invalid or
unlawful the construction, occupancy, operation or use of any Project, in the manner
required by the terms of this Agreement, or of any proceedings which affects the validity
or priority of the lien of any Mortgage or any of the other security for the Loan, or
which could result in a Material Adverse Occurrence;




     (m) The filing of any condemnation or administrative proceeding or litigation against
any Project or any casualty thereto which would impair the completion of the Work prior to
the applicable date required therefor, as determined by the Administrative Agent in its
reasonable discretion, or the utilization of such Project once completed;




     (n) The assignment or attempted assignment of this Agreement by Borrower without
Administrative Agent’s prior written consent;



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     (o) The filing of formal charges under any federal, state or local law, statute or
ordinance for which Borrower’s forfeiture of all or a material portion of any Project is a
potential penalty;




     (p) The dissolution of Borrower or any Guarantor;




     (q) (i) Any direct ownership interest in Borrower shall be transferred or assigned,
or any security interest or other lien or encumbrance shall be created in or on any direct
ownership interest in Borrower or in or on the proceeds of or distribution rights with
respect to any such ownership interest; or (ii) except in connection with any Permitted
Transfer, any ownership interest in any entity that directly or indirectly owns an
ownership interest in Borrower shall be transferred or assigned, or any security interest
or other lien or encumbrance shall be created in or on any ownership interest in any such
entity or in or on the proceeds of or distribution rights with respect to any ownership
interest in any such entity; or




     (r) The occurrence of an “Event of Default” or a default (after expiration of any
notice or cure period, if any) under any of the other Loan Documents.



SECTION 9.

REMEDIES




     Upon the occurrence and during the continuance of any Event of Default, Administrative Agent
for the benefit of the Lenders, in addition to availing itself of any remedies conferred upon it at
law or in equity and by the terms of the Notes, any Mortgage and the other Loan Documents, may
pursue any one or more of the following remedies first, concurrently or successively with each
other and with any other available remedies, it being the intent hereof that none of such remedies
shall be to the exclusion of any others:




     (a) Take possession of any Project and complete the Work and do anything necessary or
desirable in Administrative Agent’s sole judgment to fulfill the obligations of Borrower
hereunder, including, without limitation, either the right to avail itself of and procure
performance of the Construction Contract, any Subcontracts or any other contract entered into for the performance of all or any portion of the Work (or any
substitute therefor), or to let new or additional contracts with the same Contractor or
Subcontractors or others, and to employ watchmen to protect any Project from injury.
Without limiting the generality of the foregoing and for the purposes aforesaid, Borrower
hereby appoints and constitutes Administrative Agent its lawful attorney-in-fact with full
power of substitution (i) to complete the Work in the name of Borrower; (ii) to use
portions of the Loans or other funds which may be reserved, escrowed or set aside for any
purposes hereunder at any time to complete the Work; (iii) to make changes in any of the
Plans and Specifications which shall be reasonably necessary or reasonably desirable to
complete the Work; (iv) to retain or employ new general contractors, subcontractors,
architects, engineers and inspectors as shall be required for such purposes; (v) to pay,
settle or compromise all existing bills and claims, which may be liens or security
interests or to avoid such bills and claims becoming liens or security interests against
any Project, or as may be necessary or desirable for the completion of



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the Work or for the clearance of title; (vi) to execute all applications and certificates in the name of
Borrower which may be required by any of the Loan Documents; (vii) to prosecute and defend
all actions or proceedings in connection with the Work; (viii) to take such action and
require such performance as it deems necessary under any of the bonds to be furnished
pursuant to the provisions hereof and to make settlements and compromises with the surety
or sureties thereunder, and in connection therewith, to execute instruments of release and
satisfaction; it being understood that the foregoing power of attorney is coupled with an
interest and cannot be revoked. All sums expended by Administrative Agent pursuant to
this Section 9 shall be deemed to have been paid to Borrower and secured by each
Mortgage and the other Loan Documents, and shall bear interest at the Default Rate until
repaid to Administrative Agent.




     (b) Make any protective advance Administrative Agent deems necessary to (i) preserve,
maintain, repair, restore or rebuild any Improvements, (ii) preserve the lien of each
Mortgage or the priority thereof or (iii) enforce this Agreement, each Mortgage and the
other Loan Documents. All sums expended by Administrative Agent pursuant to this
Section 9(b) shall be deemed to have been paid to Borrower and secured by each
Mortgage and the other Loan Documents, and shall bear interest at the Default Rate until
repaid to Administrative Agent.




     (c) Withhold further disbursements of proceeds of the Loans and terminate the
Commitments.




     (d) Declare the unpaid indebtedness evidenced by the Notes to be immediately due and
payable.




     (e) Apply the balance of any deposits made with Administrative Agent toward the
repayment of the Loans.




     (f) The Issuing Lender may, with the approval of Administrative Agent on behalf of
the Required Lenders, demand immediate payment by Borrower of an amount equal to the
aggregate amount of all outstanding Letters of Credit to be held in a deposit account with Administrative Agent to secure amounts due from Borrower under Letters
of Credit and when no Letters of Credit exist, the Loans.



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SECTION 10.

ADMINISTRATIVE AGENT




     10.1 Authorization and Action. Each Lender hereby appoints and authorizes
Administrative Agent to take such action as contractual representative on such Lender’s behalf and
to exercise such powers under this Agreement, the other Loan Documents and a Post-Foreclosure Plan
as are specifically delegated to Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the foregoing, each
Lender authorizes and directs Administrative Agent to enter into the Loan Documents for the benefit
of the Lenders and to exercise the remedies as herein provided. Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders in accordance with
the provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders
of the powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein
(including the use of the term “Administrative Agent”) shall be construed to deem Administrative
Agent a trustee or fiduciary for any Lender nor to impose on Administrative Agent duties or
obligations other than those expressly provided for herein. At the request of a Lender,
Administrative Agent will forward to such Lender copies or, where appropriate, originals of the
documents delivered to Administrative Agent pursuant to this Agreement or the other Loan Documents.
Administrative Agent will also furnish to any Lender, upon the request of such Lender, a copy of
any certificate or notice furnished to Administrative Agent by Borrower or any other Affiliate of
Borrower, pursuant to this Agreement or any other Loan Document not already delivered to such
Lender pursuant to the terms of this Agreement or any such other Loan Document. As to any matters
not expressly provided for by the Loan Documents (including, without limitation, enforcement or
collection of any of the Loans) or in a Post-Foreclosure Plan, Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other
provision of this Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Loans; provided, however, that, notwithstanding anything in this Agreement or
in a Post-Foreclosure Plan to the contrary, Administrative Agent shall not be required to take any
action which exposes Administrative Agent to personal liability or which is contrary to this
Agreement, any other Loan Document, Applicable Law or a Post-Foreclosure Plan. Borrower may rely
on written amendments or waivers executed by Administrative Agent or acts taken by Administrative
Agent as being authorized by the Lenders or the Requisite Lenders, as applicable, to the extent
Administrative Agent does not advise Borrower that it has not obtained such authorization from the
Lenders or the Requisite Lenders, as applicable. The Issuing Lender shall act on behalf of Lenders
with respect to any Letters of Credit issued by it and the documents associated therewith, and the
Issuing Lender shall have all of the benefits and immunities (i) provided to Administrative Agent
in this Article with respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued by it and the applications
and agreements for letters of credit pertaining to such Letters of Credit and (ii) as additionally provided in this Agreement with respect to the
Issuing Lender.



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     10.2 Administrative Agent’s Reliance, Etc. Notwithstanding any other provisions of
this Agreement or any other Loan Documents, neither Administrative Agent nor any of its directors,
officers, agents, employees or counsel shall be liable to any of the Lenders for any action taken
or omitted to be taken by it or them under or in connection with this Agreement or a
Post-Foreclosure Plan, except for its or their own gross negligence or willful misconduct as
determined by a final nonappealable judgment of a court of competent jurisdiction. Without
limiting the generality of the foregoing, Administrative Agent: (a) may treat the payee of any
Note as the holder thereof until Administrative Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to Administrative Agent; (b) may
consult with legal counsel (including its own counsel or counsel for Borrower), independent public
accountants and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts; (c) makes no warranty or representation to any Lender or any other Person and shall not
be responsible to any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement, any other Loan Document or a
Post-Foreclosure Plan; (d) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of any of this Agreement, any other Loan
Document or a Post-Foreclosure Plan or the satisfaction of any conditions precedent under this
Agreement, any Loan Document or a Post-Foreclosure Plan on the part of Borrower or other Persons or
inspect the property, books or records of Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other instrument or document
furnished pursuant thereto or any collateral covered thereby or the perfection or priority of any
Lien in favor of Administrative Agent on behalf of the Lenders in any such collateral; and (f)
shall incur no liability under or in respect of this Agreement, any other Loan Document or a
Post-Foreclosure Plan by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone or telecopy) believed by it to be genuine and signed, sent or
given by the proper party or parties.



     10.3 Notice of Defaults. Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of an Unmatured Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to Administrative Agent
for the account of the Lenders, unless Administrative Agent has received written notice from a
Lender or Borrower referring to this Agreement, describing with reasonable specificity such
Unmatured Default or Event of Default and stating that such notice is a “notice of default.” If
any Lender (excluding the Lender which is also serving as Administrative Agent) becomes aware of
any Unmatured Default or Event of Default, it shall promptly send to Administrative Agent such a
“notice of default.” Further, if Administrative Agent receives such a “notice of default”,
Administrative Agent shall give prompt notice thereof to the Lenders. Administrative Agent shall
take such action with respect to such Event of Default as may be requested by the Lenders in
accordance with this Section 10.3; provided that unless and until Administrative
Agent has received any such request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event of Default as it shall deem
advisable or in the best interest of the Lenders.



     10.4 Administrative Agent as Lender. Administrative Agent, as a Lender, shall have
the same rights and powers under this Agreement, any other Loan Document and a Post-



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Foreclosure Plan as any other Lender and may exercise the same as though it were not Administrative Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Administrative
Agent in each case in its individual capacity. Administrative Agent and its Affiliates may each
accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage in any kind of
business with, Borrower or any other Affiliate thereof as if it were any other bank and without any
duty to account therefor to the other Lenders. Further, Administrative Agent and any Affiliate may
accept fees and other consideration from Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the other Lenders.




     10.5 Approvals of Lenders. All communications from Administrative Agent to any Lender
requesting such Lender’s determination, consent, approval or disapproval (a) shall be given in the
form of a written notice to such Lender, (b) shall be accompanied by a description of the matter or
issue as to which such determination, approval, consent or disapproval is requested, or shall
advise such Lender where information, if any, regarding such matter or issue may be inspected, or
shall otherwise describe the matter or issue to be resolved, (c) shall include, if reasonably
requested by such Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to Administrative Agent by Borrower in
respect of the matter or issue to be resolved, and (d) shall include Administrative Agent’s
recommended course of action or determination in respect thereof. Each Lender shall reply
promptly, but in any event within ten (10) days (or such lesser or greater period as may be
specifically required under the Loan Documents or a Post-Foreclosure Plan) of receipt of such
communication. Except as otherwise provided in this Agreement and except with respect to items
requiring the unanimous consent or approval of the Lenders pursuant to Section 10.12,
unless a Lender shall give written notice to Administrative Agent that it specifically objects to
the recommendation or determination of Administrative Agent (together with a written explanation of
the reasons behind such objection) within the applicable time period for reply, such Lender shall
be deemed to have conclusively approved of or consented to such recommendation or determination.



     10.6 Lender Credit Decision, Etc. Each Lender expressly acknowledges and agrees that
neither Administrative Agent nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other Affiliates has made any representations or warranties as to the
financial condition, operations, creditworthiness, solvency or other information concerning the
business or affairs of Borrower or any other Person or any Property to such Lender and that no act
by Administrative Agent hereafter taken, including any review of the affairs of Borrower, shall be
deemed to constitute any such representation or warranty by Administrative Agent to any Lender. Each Lender
acknowledges that it has, independently and without reliance upon Administrative Agent, any other
Lender or counsel to Administrative Agent, or any of their respective officers, directors,
employees and agents, and based on the financial statements of Borrower or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the business and affairs
of Borrower and other Persons and the Property, its review of the Loan Documents, a
Post-Foreclosure Plan (if and when prepared) the legal opinions required to be delivered to it
hereunder, the advice of its own counsel and such other documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into this Agreement and
the transaction contemplated hereby. Each Lender also



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acknowledges that it will, independently and without reliance upon Administrative Agent, any other Lender or counsel to Administrative Agent or
any of their respective officers, directors, employees and agents, and based on such review,
advice, documents and information as it shall deem appropriate at the time, continue to make its
own decisions in taking or not taking action under the Loan Documents and a Post-Foreclosure Plan.
Except for notices, reports and other documents and information expressly required to be furnished
to the Lenders by Administrative Agent under this Agreement, any of the other Loan Documents or a
Post-Foreclosure Plan, Administrative Agent shall have no duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of Borrower or any other Affiliate thereof which
may come into possession of Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that Administrative
Agent’s legal counsel in connection with the transactions contemplated by this Agreement or a
Post-Foreclosure Plan is only acting as counsel to Administrative Agent and is not acting as
counsel to such Lender.




     10.7 Indemnification of Administrative Agent by Lenders. Each Lender agrees to
indemnify Administrative Agent (to the extent not reimbursed by Borrower and without limiting the
obligation of Borrower to do so) pro rata in accordance with such Lender’s respective Commitment
Percentage, from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against Administrative Agent (in its
capacity as Administrative Agent but not as a Lender) in any way relating to or arising out of the
Loan Documents, a Post-Foreclosure Plan, any transaction contemplated hereby or thereby or any
action taken or omitted by Administrative Agent under the Loan Documents (collectively,
“Indemnifiable Amounts”); provided, however, that no Lender shall be liable for any portion of such
Indemnifiable Amounts to the extent resulting from Administrative Agent’s gross negligence or
willful misconduct as determined by a final nonappealable judgment of a court of competent
jurisdiction or if Administrative Agent fails to follow the written direction of the Requisite
Lenders, unless such failure is pursuant to the reasonable advice of counsel of which the Lenders
have received notice. Without limiting the generality of the foregoing but subject to the
preceding provision, each Lender agrees to reimburse Administrative Agent (to the extent not
reimbursed by Borrower and without limiting the obligation of Borrower to do so) promptly upon
demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees of
the counsel(s) of Administrative Agent’s own choosing) incurred by Administrative Agent in
connection with the preparation, negotiation, execution, administration or enforcement of, or legal
advice with respect to the rights or responsibilities of the parties under, the Loan Documents, a Post-Foreclosure Plan, any suit
or action brought by Administrative Agent to enforce the terms of the Loan Documents and/or collect
any Loans, any “lender liability” suit or claim brought against Administrative Agent and/or the
Lenders, and any claim or suit brought against Administrative Agent and/or the Lenders arising
under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be
advanced by the Lenders on the request of Administrative Agent notwithstanding any claim or
assertion that Administrative Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by Administrative Agent that Administrative Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that Administrative Agent is
not so entitled to indemnification. The agreements in this Section 10.7 shall not limit
the terms of Section 3.7 and shall survive the payment of the Loans and all



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other amounts payable hereunder or under the other Loan Documents and the termination of this Agreement. If
Borrower shall reimburse Administrative Agent for any Indemnifiable Amount following payment by any
Lender to Administrative Agent in respect of such Indemnifiable Amount pursuant to this Section
10.7, Administrative Agent shall share such reimbursement on a ratable basis with each Lender
making any such payment.




     10.8 Successor Administrative Agent. Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents by giving written notice thereof to the Lenders and
Borrower, and any such resignation by Administrative Agent shall also constitute its resignation as
the Issuing Lender. Upon any such resignation, the Requisite Lenders and, so long as no Event of
Default has occurred and is continuing, Borrower, shall have the right to appoint a successor
Administrative Agent, which shall be a Lender, if any Lender shall be willing to serve, and
otherwise shall be a commercial bank having total combined assets of at least Five Billion Dollars
($5,000,000,000). If no successor Administrative Agent shall have been so appointed in accordance
with the immediately preceding sentence, and shall have accepted such appointment, within thirty
(30) days after the resigning Administrative Agent’s giving of notice of resignation, then the
resigning Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative
Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be a
commercial bank having total combined assets of at least Five Billion Dollars ($5,000,000,000).
Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent, shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and obligations under the
Loan Documents as Administrative Agent and the retiring Issuing Lender’s rights, powers and duties
as such shall be terminated, without any other or further act or deed on the part of such retiring
Issuing Lender or any other Lender, other than the obligation of the successor Issuing Lender to
issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time
of such succession or to make other arrangements satisfactory to the retiring Issuing Lender to
effectively assume the obligations of the retiring Issuing Lender with respect to such Letter of
Credit. If no successor agent has accepted appointment as Administrative Agent by the date which
is forty-five (45) days following a retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of Administrative Agent hereunder until such time, if any,
as the Requisite Lenders appoint a successor agent as provided for above. After any Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Section 10.8 and all provisions
of this Agreement relating to Loans shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under the Loan Documents. Upon any
change in Administrative Agent under this Agreement, the resigning Administrative Agent shall
execute such assignments of and amendments to the Loan Documents as may be necessary to substitute
the successor Administrative Agent for the resigning Administrative Agent.



     10.9 Other Loans by Lenders to Borrower. The Lenders agree that one or more of them
may now or hereafter have other loans to Borrower or one or more Affiliates of Borrower which are
not subject to this Agreement. The Lenders agree that the Lender(s) which may have such other
loan(s) to Borrower and such Affiliates may collect payments on such loan(s) and may secure such
loan(s) (so long as such loan does not itself expressly violate this Agreement).



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Further, the Lenders agree that the Lender(s) which may have such other loan(s) to Borrower and such Affiliates
shall have no obligation to attempt to collect payments under the Loans in preference and priority
over the collection and/or enforcement of such other loan(s).




     10.10 Request for Administrative Agent Action. Administrative Agent and the Lenders
acknowledge that in the ordinary course of business of Borrower, (a) a Property may be subject to a
condemnation or eminent domain proceeding (a “Taking”), (b) Borrower may desire to enter into
easements or other agreements affecting a Real Property, or (c) Borrower may desire to take other
actions or enter into other agreements in the ordinary course of business which similarly require
the consent, approval or agreement of Administrative Agent. In connection with the foregoing, the
Lenders hereby expressly authorize Administrative Agent to (x) execute, releases of liens in
connection with any Taking or after repayment of the Loans, (y) execute consents or subordinations
in form and substance satisfactory to Administrative Agent in connection with any easements or
agreements affecting a Real Property, or (z) execute consents, approvals, or other agreements in
form and substance satisfactory to Administrative Agent in connection with such other actions or
agreements as may be necessary in the ordinary course of Borrower’s business.



     10.11 Assignments/Participations.




     (a) Any Lender may make, carry or transfer Loans at, to or for the account of any of
its branch offices or the office of an Affiliate of such Lender except to the extent such
transfer would result in increased costs to Borrower.




     (b) Any Lender may at any time grant to one or more banks or other financial
institutions (each a “Participant”) participating interests in its Commitment or the
Obligations owing to such Lender; provided, however, (i) any such participating interest
must be for a constant and not a varying percentage interest, (ii) no Lender may grant a
participating interest in its Commitment, or if any of the Commitments have been
terminated, the aggregate outstanding principal balance of Notes held by it, in an amount
less than Ten Million Dollars ($10,000,000.00) or integral multiples of One Million Dollars ($1,000,000.00) in excess thereof, and (iii) after giving effect to
any such participation by a Lender, the amount of its Commitment, or if any of the
Commitments have been terminated, the aggregate outstanding principal balance of Notes
held by it, in which it has not granted any participating interests must be equal to Ten
Million Dollars ($10,000,000.00) and integral multiples of One Million Dollars
($1,000,000.00) in excess thereof. No Participant shall have any rights or benefits under
this Agreement or any other Loan Document. In the event of any such grant by Lender of a
participating interest to a Participant, such Lender shall remain responsible for the
performance of its obligations hereunder, and Borrower and Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. Any agreement pursuant to which any Lender
may grant such a participating interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided, however, such Lender may agree with the Participant
that it will not, without the consent of the



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Participant, agree to (i) except as otherwise permitted in this Agreement, increase or extend the term or extend the time or waive any
requirement for the reduction of termination of, such Lender’s Commitment, (ii) extend the
date fixed for the payment of principal of or interest on the Loans or portions thereof
owing to such Lender, (iii) reduce the amount of any such payment of principal, or (iv)
reduce the rate at which interest is payable thereon. An assignment or other transfer
which is not permitted by Section 10.11(c) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest granted in
accordance with this Section 10.11(b). The selling Lender shall notify
Administrative Agent and Borrower of the sale of any participation hereunder and, if
requested by Administrative Agent, certify to Administrative Agent that such participation
is permitted hereunder.




     (c) Any Lender may with the prior written consent of Administrative Agent (which
consent shall not be unreasonably withheld or delayed), assign to one or more Eligible
Assignees (each an “Assignee”) all or a portion of its Commitment and its other rights and
obligations under this Agreement and the Notes; provided, however, (i) any partial
assignment of a Commitment shall be in an amount at least equal to Fifteen Million Dollars
($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in excess
thereof and after giving effect to such partial assignment the assigning Lender retains a
portion of the Commitment so assigned, or if any of the Commitments have been terminated,
holds Notes having an aggregate outstanding principal balance, of at least Fifteen Million
Dollars ($15,000,000.00) and integral multiples of One Million Dollars ($1,000,000.00) in
excess thereof (provided, however, the conditions set forth in this Section
10.11(c) (i) shall not apply to any full assignment by any Lender of its Commitment);
and (ii) each such assignment shall be effected by means of an Assignment and Acceptance
Agreement. Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Lender of an amount equal to the purchase price agreed between such
transferor Lender and such Assignee, such Assignee shall be deemed to be a Lender party to
this Agreement as of the effective date of the Assignment and Acceptance Agreement and
shall have all the rights and obligations of a Lender with a Commitment as set forth in
such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to this
Section 10.11(c), the transferor Lender, Administrative Agent and Borrower shall
make appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate. In connection with any such assignment, the transferor
Lender shall pay to Administrative Agent an administrative fee for processing such
assignment in the amount of Three Thousand Five Hundred Dollars ($3,500.00).




     (d) Administrative Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and register for the
recordation of the names and addresses of the Lenders and the Commitment of each Lender
from time to time (the “Register”). Administrative Agent shall give each Lender and
Borrower notice of the assignment by any Lender of its rights as contemplated by this
Section 10.11. Borrower, Administrative Agent and the



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Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register and copies of each Assignment and Acceptance Agreement shall
be available for inspection by Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice to Administrative Agent. Upon its receipt of an
Assignment and Acceptance Agreement executed by an assigning Lender, together with each
Note subject to such assignment, Administrative Agent shall, if such Assignment and
Acceptance Agreement has been completed and if Administrative Agent receives the
processing and recording fee described in Section 10.11(c) above, (i) accept such
Assignment and Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to Borrower.




     (e) In addition to the assignments and participations permitted under the foregoing
provisions of this Section 10.11, any Lender may assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank,
and such Loans and Notes shall be fully transferable as provided therein. No such
assignment shall release the assigning Lender from its obligations hereunder.




     (f) A Lender may furnish any information concerning Borrower, any other Obligor or
any of their respective Affiliates in the possession of such Lender from time to time to
Assignees and Participants (including prospective Assignees and Participants) subject to
compliance with Section 11.7.




     (g) Anything in this Section 10.11 to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to Borrower, any
other Obligor or any of their respective Affiliates.




     (h) Each Lender agrees that, without the prior written consent of Borrower and
Administrative Agent, it will not make any assignment hereunder in any manner or under any
circumstances that would require registration or qualification of, or filings in respect of, any Loan or Note under the Securities Act or any other securities laws of
the United States of America or of any other jurisdiction.




     (i) Notwithstanding anything to the contrary contained herein, if at any time The
PrivateBank and Trust Company assigns all of its Commitment and interest in the Loan
pursuant to this Section 10.11, The PrivateBank and Trust Company may, upon thirty
(30) days’ notice to Borrower and the Lenders, resign as the Issuing Lender. In the event
of any such resignation as the Issuing Lender, Borrower shall be entitled to appoint from
among the Lenders a successor Issuing Lender hereunder; provided, however, that no
failure by Borrower to appoint any such successor shall affect the resignation of The
PrivateBank and Trust Company as the Issuing Lender. If The PrivateBank and Trust
Company resigns as the Issuing Lender, it shall retain all the rights and obligations of
the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the
effective date of its resignation as the Issuing Lender and all Letter of Credit
Obligations with respect thereto (including the right to require the



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Lenders to make an advance of a Base Rate Loan or fund risk participations for Letter of Credit Borrowings
pursuant to Section 3 of Exhibit G).



     10.12 Approval by Lenders.




     (a) Upon the termination or reduction to zero (0) of all of the Commitments and
payment and satisfaction in full of all of the obligations hereunder and under the other
Loan Documents, Lenders hereby expressly authorize Administrative Agent to release any
liens arising under the Loan Documents. Notwithstanding the above, subject to Section 7 of
Exhibit G, amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit above shall be applied to satisfy drawings under such Letters of Credit
as they occur. If any amount remains on deposit as Cash Collateral after all Letters of
Credit have either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, and to the extent of any remainder, otherwise remitted to
Borrower.




     (b) Administrative Agent and the Lenders acknowledge that, in the ordinary course of
Borrower’s construction, ownership, maintenance and operation of a Property, Borrower may
request Administrative Agent’s consent or approval to enter into customary easements and
other customary agreements or to take other actions in the ordinary course of Borrower’s
business operations. Provided such Borrower requests are in each instance consistent and
compatible with such Project, and subject in each instance to the restrictions and
limitations set forth in this Section 10.12 (or any other provision of the Loan
Documents which expressly requires the consent of the Requisite Lenders or the Lenders),
Lenders hereby expressly authorize Administrative Agent to consent to and approve (or to
condition consent or approval or to deny) such requests in form and substance satisfactory
to Administrative Agent.




     (c) Unless the consent of all of the Lenders is required pursuant to Section
10.12(d) (or any other provision of the Loan Documents which expressly requires the
consent of all of the Lenders), Requisite Lenders shall have the right to amend the terms
of the Loan Documents, and to consent to and approve Borrower requests that Lenders have not otherwise expressly authorized Administrative Agent to consent to
and approve, in each instance by a writing signed by the Requisite Lenders or
Administrative Agent at the written direction of or with the consent of all of the
Requisite Lenders. Notwithstanding anything to the contrary contained herein, no
amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender in
addition to the Requisite Lenders required above affect the rights or duties of the
Issuing Lender under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it.




     (d) Notwithstanding anything to the contrary in any of the Loan Documents, no
amendment, waiver, consent or approval shall, unless in writing and signed by all of the
Lenders or Administrative Agent at the written direction of all of the Lenders, do any of
the following: (i) extend or increase the Commitments (or any component thereof) of the
Lenders or subject the Lenders to any additional obligations; (ii) reduce or forgive the
amount of any fees, costs or expenses payable under any Loan



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Document; (iii) postpone any date fixed for any payment of any principal of, or interest on, any Loans or any other
Obligations; (iv) modify the definition of the term “Requisite Lenders;” (v) release or
limit any Guarantor from its obligation under the Guaranty; (vi) reduce or forgive the
principal amount of any Loan or the rate of interest thereon; (vii) modify any prorata
sharing of payments to be received by any Lender hereunder; (viii) extend the Maturity
Date (other than in accordance with Section 3.5); (ix) modify this Section
10.12; or (x) except as provided in the first sentence of Section 10.12(a) or
as otherwise provided in Section 3.10, release any Collateral; provided however,
no amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender
in addition to the Lenders required above affect the rights or duties of the Issuing
Lender in such capacity under this Agreement or any Letter of Credit Application relating
to any Letter of Credit issued or to be issued by it.




     (e) Further, no amendment, waiver or consent unless in writing and signed by
Administrative Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of Administrative Agent in such capacity under this
Agreement or any of the other Loan Documents.




     (f) No waiver shall extend to or affect any obligation not expressly waived or impair
any right consequent thereon and any amendment, waiver, consent or approval shall be
effective only in the specific instance and for the specific purpose set forth therein.
No course of dealing or delay or omission on the part of Administrative Agent or any
Lender in exercising any right shall operate as a wavier thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in any other
Loan Document, no notice to or demand upon Borrower shall entitle Borrower to any other or
further notice or demand in similar or other circumstances.




     (g) If, in connection with any proposed amendment, modification, waiver, approval or
termination requiring the consent of all Lenders, the consent of the Requisite Lenders is
obtained, but the consent of other Lenders whose consent is required is not obtained (any
such Lender whose consent is not obtained being referred to as a “Non-Consenting Lender”),
then, so long as Administrative Agent is not a Non-Consenting Lender, Administrative Agent and/or a Person or Persons reasonably
acceptable to Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Borrower, shall have the right to purchase (such purchaser, a “Purchasing
Party”) from such Non-Consenting Lenders, and such Non-Consenting Lenders agree that they
shall, upon Administrative Agent’s request, sell and assign to the Purchasing Party, all
of the Loans of such Non-Consenting Lenders for an amount equal to the principal balance
of all such Loans held by such Non-Consenting Lenders and all accrued interest, fees,
expenses and other amounts then due with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment and Acceptance
Agreement. If there is more than one Purchasing Party resulting in greater funds than are
necessary, the amount funded by each such Purchasing Party shall be reduced if necessary,
so that each Purchasing Party’s amount funded is in proportion to the Commitments of all
of the Purchasing Lenders exercising its right to purchase the Non-Consenting Lenders’
Loan (calculated without regard to



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the Commitment of the Non-Consenting Lender and any other Lender who has not elected to fund).



     10.13 Post Foreclosure Plans.




     (a) If all or any portion of the Collateral is acquired by Administrative Agent as a
result of a foreclosure or the acceptance of a deed or assignment in lieu of foreclosure,
or is retained in satisfaction of all or any part of the obligations under the Loan
Documents, the title to any such Collateral, or any portion thereof, shall be held in the
name of Administrative Agent or a nominee or Affiliate of Administrative Agent, as agent,
for the ratable benefit of all Lenders in accordance with their respective Commitment
Percentage. Administrative Agent and all Lenders hereby expressly waive and relinquish
any right of partition with respect to any Collateral so acquired. After any Collateral
is acquired, Administrative Agent may appoint and retain one or more Persons experienced
in the management, leasing, sale and/or dispositions of similar properties. After
consulting with the Person(s), if any, Administrative Agent shall prepare a recommended
course of action for such Collateral (a “Post-Foreclosure Plan”), which shall be subject
to the approval of the Requisite Lenders. In accordance with the approved
Post-Foreclosure Plan, Administrative Agent shall manage, operate, repair, administer,
complete, construct, restore or otherwise deal with the Collateral acquired, and shall
administer all transactions relating thereto, including, without limitation, employing a
management agent, leasing agent and other agents, contractors and employees, including
agents for the sale of such Collateral, and the collecting of rents and other sums from
such Collateral and paying the expenses of such Collateral. Actions taken by
Administrative Agent with respect to the Collateral, which are not specifically provided
for in the approved Post-Foreclosure Plan or reasonably incidental thereto, shall require
the written consent of the Requisite Lenders by way of supplement to such Post-Foreclosure
Plan.




     (b) Upon demand therefor from time to time, each Lender will within five (5) Business
Days after request, contribute its share (based on its Commitment Percentage) of all reasonable costs and expenses incurred by Administrative Agent
pursuant to the approved Post-Foreclosure Plan in connection with the construction,
operation, management, maintenance, leasing and sale of such Collateral. In addition,
Administrative Agent shall render or cause to be rendered to each Lender, on a monthly
basis, an income and expense statement for such Collateral, and each Lender shall promptly
contribute its Commitment Percentage of any operating loss for such Collateral, and such
other expenses and operating reserves as Administrative Agent shall deem reasonably
necessary pursuant to and in accordance with the approved Post-Foreclosure Plan. To the
extent there is net operating income from such Collateral, Administrative Agent shall, in
accordance with the approved Post-Foreclosure Plan, determine the amount and timing of
distributions to Lenders. All such distributions shall be made to Lenders in accordance
with their respective Commitment Percentage.




     (c) Lenders acknowledge and agree that if title to any Collateral is obtained by
Administrative Agent or its nominee, such Collateral will not be held as a permanent
investment but will be liquidated as soon as practicable. Administrative Agent shall



101









 







undertake to sell such Collateral, at such price and upon such terms and conditions as the
Required Lenders reasonably shall determine to be most advantageous to Lenders. Any
purchase money mortgage or deed of trust taken in connection with the disposition of such
Collateral in accordance with the immediately preceding sentence shall name Administrative
Agent, as agent for the Lenders, as the beneficiary or mortgagee. In such case,
Administrative Agent and Lenders shall enter into an agreement with respect to such
purchase money mortgage or deed of trust defining the rights of Lenders in the same
Commitment Percentage as provided hereunder, which agreement shall be in all material
respects similar to this Article insofar as the same is appropriate or applicable.



     10.14 Co-Agents; Lead Managers. None of the Lenders or other persons identified on
the facing page or signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” or “lead manager,” “arranger,” “lead arranger” or “co-arranger”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such lenders, those applicable to all Lenders as such. Without limiting
the foregoing, none of Lenders or other persons so identified as a “syndication agent,”
“documentation agent,” “co-agent” or “lead manager” shall have or be deemed to have any fiduciary
relationship with any Lenders. Each Lender acknowledges that it has not relied, and will not rely,
on any of Lenders or other persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.



SECTION 11.

MISCELLANEOUS




     11.1 Additional Indebtedness. If any advances or payments made by Lenders pursuant to
this Agreement or any other Loan Document, together with disbursements of the Loans, shall exceed
the aggregate face amount of the Notes, all such advances and payments shall constitute additional
indebtedness secured by each Mortgage and all other security for the Loans, and shall bear interest at the
Default Rate from the date advanced until paid. Additionally, if an Event of Default shall occur,
Administrative Agent may, but shall not be obligated to, take any and all actions to cure such
default, and all amounts expended in so doing, all Loan Expenses and all other amounts paid or
advanced by Administrative Agent and/or the Lenders pursuant to the Loan Documents, and all other
amounts advanced by Administrative Agent in connection with the performance of the Work or
preserving any security for the Loans, shall constitute additional advances of the Loans, shall be
secured by each Mortgage and all other security for the Loans, and shall bear interest at the
Default Rate from the date advanced until paid.



     11.2 Additional Acts. Borrower shall, upon request, execute and deliver such further
instruments and documents and do such further acts and things as may be reasonably required to
provide to Administrative Agent the evidence of and security for the Loan contemplated by this
Agreement.



     11.3 Loan Agreement Governs. In the event of any inconsistency between any provision
of this Agreement and any provision of any other Loan Document, the provision of this Agreement
shall govern; provided, however, that the provisions of all of the Loan Documents



102









 







shall be construed as an integrated set of provisions governing the Loan and, accordingly, shall be
interpreted and construed liberally to give the maximum validity, enforceability and effect to all
of such provisions.



     11.4 Additional Advances. This Agreement shall not be amended, modified or supplemented
without the written agreement of Borrower, Administrative Agent and Lenders at the time of such
amendment, modification or supplement. No waiver of any provision of this Agreement or any of the
other Loan Documents shall be effective unless set forth in writing signed by the party making such
waiver, and any such waiver shall be effective only to the extent therein set forth. Failure by
Administrative Agent to insist upon full and prompt performance of any provisions of this Agreement
or any of the other Loan Documents, or to take action in the event of any breach of any such
provision or upon the occurrence of any Event of Default, shall not constitute a waiver of any
rights of Administrative Agent and/or Lenders, and Administrative Agent and/or Lenders may at any
time thereafter exercise all available rights and remedies with respect to such breach or Event of
Default. Receipt by Administrative Agent of any instrument or document shall not constitute or be
deemed to be an approval thereof. Any approvals required under any of the other Loan Documents
must be in writing, signed by Administrative Agent and directed to Borrower.



     11.5 Notice. All notices or other written communications hereunder shall be deemed to
have been properly given (a) upon delivery, if delivered in person, (b) one (1) Business Day after
having been deposited for overnight delivery with any reputable overnight courier service, (c) three
(3) Business Days after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid,
return receipt requested; or (d) upon receipt, if delivered by facsimile (so long as such notice is
also simultaneously sent by one of the other methods described herein), addressed to the addresses
set forth below in this Section 11.5 or as such party may from time to time designate by
written notice to the other parties. Either party by notice to the other in the manner provided
herein may designate additional or different addresses for subsequent notices or communications:



	 	 	 	 	 

	 

	 	To Administrative Agent:
	 	The PrivateBank and Trust Company

120 S. LaSalle Street

Chicago, Illinois 60603

Attn: Nathan R. Podratz, Managing Director

Fax: (312) 564-6886
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Riemer & Braunstein LLP

71 South Wacker Drive, Suite 3515

Chicago, Illinois 60606

Attn: Joel V. Sestito, Esquire

Fax: (312) 276-8141






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	 	To Borrower:
	 	c/o Campus Crest Communities 

Operating Partnership, LP

2100 Rexford Road, Suite 414

Charlotte, North Carolina 28211

Attn: Donald L. Bobbit, Jr.

Fax: (704) 973-0965
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Bradley Arant Boult Cummings LLP

One Federal Place

1819 5th Avenue North

Birmingham, Alabama 35203-2119

Attn: Dawn Helms Sharff, Esquire

Fax: (205) 488-6200






     11.6 Successors and Assigns of Borrower. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns,
except that Borrower may not assign or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of all Lenders and any such assignment or other
transfer to which all of the Lenders have not consented shall be null and void.




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     11.7 Confidentiality. Except as otherwise provided by Applicable Law,
Administrative Agent and each Lender shall utilize all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as confidential or proprietary by
Borrower in accordance with its customary procedure for handling confidential information of this
nature to prevent improper disclosure (including disclosure to competitors of Borrower) and in
accordance with safe and sound banking practices but in any event may make disclosure: (a) to any
of their respective Affiliates (provided they shall be notified of the obligation to keep such
information confidential in accordance with the terms of this Section 11.7); (b) as
reasonably requested by any bona fide Assignee, Participant or other transferee in connection with
the contemplated transfer of any Commitment or participations therein as permitted hereunder
(provided they shall be notified of the obligation to keep such information confidential in
accordance with the terms of this Section 11.7); (c) as required or requested by any
Governmental Authority or representative thereof or pursuant to legal process or in connection with
any legal proceedings; (d) to Administrative Agent’s or such Lender’s independent auditors and
other professional advisors (provided they shall be notified of the obligation to keep such
information confidential in accordance with the terms of this Section 11.7); (e) after the
happening and during the continuance of an Event of Default, to any other Person, in connection
with the exercise by Administrative Agent or the Lenders of rights hereunder or under any of the
other Loan Documents; and (f) to the extent such information (i) becomes publicly available other
than as a result of a breach of this Section 11.7 or (ii) becomes available to
Administrative Agent or any Lender on a non-confidential basis from a source other than Borrower,
any other Obligor, or any of their respective subsidiaries or any of their respective Affiliates.



     11.8 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois.



     11.9 Indemnity by Borrower. To the fullest extent permitted by law, Borrower agrees
to defend (with counsel reasonably satisfactory to Administrative Agent), protect, indemnify and
hold harmless Lenders and Administrative Agent, any parent corporation, affiliated corporation or
subsidiary of Administrative Agent and the Lenders, and each of their respective officers,
directors, employees, attorneys and agents (each, an “Indemnified Party”) from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs
and expenses of any kind or nature (including, without limitation, the disbursements and the
reasonable fees of counsel for each Indemnified Party thereto, which shall also include, without
limitation, reasonable attorneys’ fees and time charges of attorneys who may be employees of
Lenders or any parent or affiliated corporation of Lenders), which may be imposed on, incurred by,
or asserted against, any Indemnified Party (whether direct, indirect or consequential and whether
based on any federal, state or local laws or regulations, including, without limitation,
securities, environmental laws and commercial laws and regulations, under common law or in equity,
or based on contract or otherwise) in any manner relating to or arising out of this Agreement or
any of the Loan Documents, or any act, event or transaction related or attendant
thereto, the preparation, execution and delivery of this Agreement, the Notes and the Loan
Documents, the making or issuance and management of the Loans, any Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a
demand for payment under a Letter of Credit if the documents presented in connection



105









 




with such demand do not strictly comply with the terms of such Letter of Credit), the use or intended use of
the proceeds of the Loans and the enforcement of Lenders’ rights and remedies under this Agreement,
the Notes, the Loan Documents, any other instruments and documents delivered hereunder or
thereunder; provided, however, that Borrower shall not have any obligation hereunder to any
Indemnified Party with respect to matters caused by or resulting from the willful misconduct or
gross negligence of such Indemnified Party. To the extent that the undertaking to indemnify set
forth in the preceding sentence may be unenforceable because it violates any law or public policy,
Borrower shall satisfy such undertaking to the maximum extent permitted by Applicable Law. Any
liability, obligation, loss, damage, penalty, cost or expense covered by this indemnity shall be
paid to such Indemnified Party within five (5) days of written demand, and failing prompt payment,
together with interest thereon at the Default Rate from the date incurred by such Indemnified Party
until paid by Borrower, shall be added to the obligations of Borrower evidenced by the Notes and
secured by the collateral securing the Loans. This indemnity is not intended to excuse
Administrative Agent and the Lenders from performing hereunder. The provisions of this Section
11.9 shall survive the closing of the Loans, the satisfaction and payment of the Notes and any
cancellation of this Loan Agreement. Borrower shall also pay, and hold Administrative Agent and
the Lenders harmless from, any and all claims of any brokers, finders or agents claiming a right to
any fees in connection with arranging the Loans. Notwithstanding the foregoing, Borrower shall
have no obligation to indemnify (i) Administrative Agent with respect to Administrative Agent’s
failure to disclose information (as required herein) to the Lenders in connection with any
syndication of the Loan or (ii) any Lender with respect to another Lender’s failure to comply with
its duties and obligations set forth in the Loan Documents. Notwithstanding anything to the
contrary contained in this Section 11.9, so long as no Unmatured Default or Event of
Default has occurred and remains outstanding, the Borrower’s obligations contained in this
Section 11.9 relating to costs and expenses only shall be limited to the costs and expenses
incurred on behalf of the Administrative Agent.




     11.10 Administrative Agent’s Representatives. Administrative Agent, at Borrower’s
expense, shall have the right to engage personnel in connection with the negotiation,
documentation, administration and servicing of the Loans, including without limitation, the
Consultant, to (i) review and approve the Plans and Specifications, (ii) review and approve
Borrower’s Budget, (iii) conduct monthly inspections of the Work and report on the progress of
construction thereof, (iv) review and approve all change orders, (v) review and approve
applications for disbursements and accompanying documents, (vi) issue reports and certificates to
Administrative Agent, (vii) inspect the structural, mechanical, electrical, plumbing, HVAC and roof
systems constituting the Work, (viii) determine whether the Work has been completed in accordance
with the Plans and Specifications, and (ix) provide other services as requested by Lender, and
Borrower shall fully cooperate with the Consultant and other personnel in all reasonable respects
in connection therewith. Notwithstanding anything contained in this Agreement to the contrary, all
inspections of the Work made by Administrative Agent, the Consultant or their respective agents,
employees and designees shall be solely for Administrative Agent’s own information and shall not be
deemed to have been made for or on account of Borrower or any other party. Borrower hereby
specifically relieves Administrative Agent and/or the Lenders of any and all liability or
responsibility relating in any way whatsoever to the construction of the Project, including but not
limited to, the Work, the material or labor supplied in connection therewith, and any errors,
inconsistencies or other defects in the Project or the Plans and Specifications.



106









 





     11.11 Headings. The titles and headings of the sections and paragraphs of this
Agreement have been inserted as a matter of convenience of reference only and shall not control or
affect the meaning or construction of any of the terms or provisions of this Agreement.



     11.12 No Partnership or Joint Venture. Lenders and Administrative Agent, by executing
and performing this Agreement shall not become a partner or joint venturer with Borrower or any of
its associates or Affiliates and all inspections of the Property herein provided for are for the
sole benefit of Lenders and Administrative Agent.



     11.13 Time is of the Essence. Time is of the essence of the payment of all amounts
due Administrative Agent and Lenders under the Loan Documents and performance and observance by
Borrower of each covenant, agreement, provision and term of this Agreement and the other Loan
Documents.



     11.14 Invalid Provisions. In the event that any provision of this Agreement is deemed
to be invalid by reason of the operation of law, or by reason of the interpretation placed thereon
by any administrative agency or any court, Borrower and Administrative Agent shall negotiate an
equitable adjustment in the provisions of the same in order to effect, to the maximum extent
permitted by law, the purpose of this Agreement and the validity and enforceability of the
remaining provisions, or portions or applications thereof, shall not be affected thereby and shall
remain in full force and effect.



     11.15 Acts by Lenders. Notwithstanding anything herein contained to the contrary,
Lenders will not be required to make any disbursement or perform any other act under this Agreement
if, as a result thereof, Lenders will violate any law, statute, ordinance, rule, regulation or
judicial decision applicable thereto.



     11.16 Offset. Without limiting any of the other rights or remedies of Administrative
Agent hereunder or provided by law, any indebtedness relating to the Property or its operation and
now or hereafter owing to Borrower by Administrative Agent (including, without limitation, any
amounts on deposit in any demand, time, savings, passbook or like account maintained by
Borrower with Administrative Agent) may be offset and applied by Administrative Agent
hereunder, or under the Notes, the Mortgage or any of the other Loan Documents.



     11.17 Binding Provisions. The covenants, warranties, agreements, obligations,
liabilities and responsibilities of Borrower under this Agreement shall be binding upon and
enforceable against Borrower and its legal representatives, administrators, successors and
permitted assigns.



     11.18 Counterparts. This Agreement may be executed in counterparts, and all said
counterparts when taken together shall constitute one and the same Agreement.



     11.19 No Third Party Beneficiary. This Agreement is only for the benefit of the
parties hereto and their permitted successors and assigns. No other Person or entity shall be
entitled to rely on any matter set forth herein without the prior written consent of such parties.



     11.20 Publicity. Subject to compliance with Applicable Laws, Administrative Agent
reserves the right to publicize the making of the Loan in any manner it deems appropriate. So



107









 




long as the Loans are outstanding, Borrower will identify the Lenders as Borrower’s lenders on any sign
for the Project erected by Borrower.




     11.21 Rules of Construction. Borrower, Guarantors, Agent and the Lenders, and their
respective legal counsel, have participated in the drafting of this Agreement, and accordingly the
general rule of construction to the effect that any ambiguities in a contract are to be resolved
against the party drafting the contract shall not be employed in the construction and
interpretation of this Agreement.



     11.22 JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS
INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS OR, IF ADMINISTRATIVE AGENT INITIATES SUCH ACTION, ANY COURT IN WHICH
ADMINISTRATIVE AGENT SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. BORROWER HEREBY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED BY ADMINISTRATIVE AGENT IN ANY OF SUCH COURTS. BORROWER WAIVES ANY CLAIM THAT CHICAGO,
ILLINOIS OR THE NORTHERN DISTRICT OF ILLINOIS IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED
ON LACK OF VENUE. SHOULD BORROWER, AFTER
BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO
SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE
DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY ADMINISTRATIVE AGENT AGAINST
BORROWER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE
CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION 11.22 SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT BY ADMINISTRATIVE AGENT OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING BY ADMINISTRATIVE AGENT OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE
JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH
JUDGMENT OR ACTION.



     11.23 JURY WAIVER. BORROWER, ADMINISTRATIVE AGENT AND LENDERS HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWERS,
ADMINISTRATIVE AGENT AND LENDERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN BORROWER, ADMINISTRATIVE AGENT AND LENDERS. THIS
PROVISION IS A MATERIAL INDUCEMENT TO LENDERS TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER
LOAN DOCUMENTS.



     11.24 Contribution and Subrogation. Each Borrower (a “Contributing Party”) agrees
(subject to Section 11.25) that, in the event a payment shall be made by any other Borrower
(the



108









 




“Claiming Party”) under this Agreement, or assets of any Claiming Party shall be sold
pursuant to any Loan Document to satisfy a claim of the Lenders, the Contributing Party shall
indemnify the Claiming Party to the extent that the payment made by the Claiming Party or the value
of such assets exceeds the value received by the Claiming Party under this Agreement (such excess
being referred to as the “Contribution Amount”). The obligations of the Contributing Parties
shall be joint and several, provided that the obligations of any individual Contributing Party
shall be limited to that amount which does not render such Contributing Party insolvent, and
provided further that a Claiming Party may not recover from all Contributing Parties an amount in
excess of the Contribution Amount. Any Contributing Party making any payment to a Claiming Party
pursuant to this Section 11.24 shall be subrogated to the rights of such Claiming Party to
the extent of such payment and shall have a right of contribution from the other Contributing
Parties calculated in the same manner as set forth herein and as if the payment made to the
Claiming Party were made to the Lenders.





109









 








     11.25 Subordination. Notwithstanding any provision of this Agreement to the contrary,
all rights of the Borrower under Section 11.24 and all other rights of indemnity,
contribution or subrogation under Applicable Laws or otherwise, in each case to the extent arising
out of or based upon the Loan Documents, shall be fully subordinated to the payment in full in cash
of the Obligations. To that end, no payments shall be made by any Contributing Party to any
Claiming Party until all Obligations shall have been paid in full in cash. No failure on the part
of any Borrower to make the payments required by Section 11.24 (or any other payments
required under applicable Laws or otherwise) shall in any respect limit the obligations and
liabilities of any Borrower with respect to its obligations hereunder, and each Borrower shall
remain liable for the full amount of the obligations of such Borrower hereunder.



     11.26 Designation of Lead Borrower as Agent for Borrowers.




     (a) Each Borrower hereby irrevocably designates and appoints Lead Borrower as that
Borrower’s agent to obtain loans and advances under the Loans, the proceeds of which shall
be available to each Borrower as set forth herein. As the disclosed principal for its
agent, each Borrower shall be obligated to Administrative Agent and/or the Lender on
account of loans and advances so made under the Loans as if made directly by the
Administrative Agent and/or the Lender to that Borrower, notwithstanding the manner by
which such loans and advances are recorded on the books and records of the Lead Borrower
and/or of any Borrower (including, without limitation, on account of any such treatment of
said loan or advance as an equity investment in a Borrower by Lead Borrower).




     (b) Each Borrower recognizes that credit available to it under the Loans is in excess
of and on better terms than it otherwise could obtain on and for its own account and that
one of the reasons therefor is its joining in the credit facility contemplated herein with
each Borrower. Consequently, each Borrower, jointly and severally, hereby assumes and
agrees fully, faithfully, and punctually to discharge and satisfy all Obligations of all
Borrowers.




     (c) The Lead Borrower shall act as a conduit for each Borrower on whose behalf the
Lead Borrower has requested a loan or other advance under the Loans.




     (d) The proceeds of each loan and advance provided under the Loans which is requested
by the Lead Borrower shall be advanced as and when otherwise provided herein or as
otherwise indicated by the Lead Borrower. The Lead Borrower shall cause the transfer of
the proceeds thereof to the Borrower(s) on whose behalf such loan and advance was
obtained. The Lender shall not have any obligation to see to the application of such
proceeds.




     (e) Each Borrower hereby irrevocably designates and appoints the Lead Borrower as
that Borrower’s attorney-in-fact to act in the Borrower’s name and stead and to do and
perform all matters, to grant to the Lender a security interest in the
Collateral, transact all business, and make, execute and acknowledge all Loan



110









 






Documents and other instruments relating to this Agreement including but not limited to,
this Agreement, the Notes, and the Mortgage. Each Borrower hereby acknowledges and agrees
that the power of attorney created hereby is coupled with an interest.



     11.27 Joint and Several Liability.




     (a) Each Borrower agrees that it is jointly and severally liable to Administrative
Agent and/or the Lenders for the payment of all obligations arising under this Agreement
or any of the other Loan Documents, and that such liability is independent of the
obligations of the other Borrowers. Administrative Agent and/or the Lenders may bring an
action against any Borrower whether or not an action is brought against the other
Borrowers.




     (b) Each Borrower agrees that any release which may be given by Administrative Agent
and/or the Lenders to the other Borrowers will not release such Borrower from its
obligations under this Agreement or any of the other Loan Documents.




     (c) Each Borrower waives any right to assert against Administrative Agent and/or the
Lenders any defense, setoff, counterclaim or claim that such Borrower may have against the
other Borrowers or any other party liable to Administrative Agent and/or the Lenders for
the obligations of the Borrowers under this Agreement or any of the other Loan Documents.




     (d) Each Borrower agrees that it is solely responsible for keeping itself informed as
to the financial condition of the other Borrowers and of all circumstances which bear upon
the risk of nonpayment. Each Borrower waives any right it may have to require
Administrative Agent and/or the Lenders to disclose to such Borrower any information that
Administrative Agent and/or the Lenders may now or hereafter acquire concerning the
financial condition of the other Borrowers.




     (e) Each Borrower waives all rights to notices of default or nonperformance by any
other Borrowers under this Agreement and the other Loan Documents. Each Borrower further
waives all rights to notices of the existence or the creation of new indebtedness by any
other Borrower




     (f) Borrowers represent and warrant to Administrative Agent and/or the Lenders that
each will derive benefit, directly and indirectly, from the collective administration and
availability of the Loan under the Notes and the other Loan Documents. Borrowers agree
that Administrative Agent and/or the Lenders will not be required to inquire as to the
disposition by any Borrower of funds disbursed in accordance with the terms of the Notes
or any of the other Loan Documents.




     (g) Until all obligations of Borrowers to Administrative Agent and/or the Lenders
under this Agreement and the other Loan Documents have been paid in full, each Borrower
waives any right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under the Bankruptcy Code (Title 11, United States Code) or any successor



111









 






statute, that such Borrower may now or hereafter have against any other Borrower with
respect to the indebtedness incurred under this Agreement or any of the other Loan
Documents. Each Borrower waives any right to enforce any remedy which Administrative
Agent and/or the Lenders now has or may hereafter have against any other Borrower, and
waives any benefit of, and any right to participate in, any security now or hereafter held
by Administrative Agent and/or the Lenders.




     (h) Each Borrower hereby waives any election of remedies by Administrative Agent
and/or the Lenders that impairs any subrogation or other right of such Borrower to proceed
against any other Borrower or other person, including any loss of rights resulting from
any applicable anti-deficiency laws relating to nonjudicial foreclosures of real property
or other laws limiting, qualifying or discharging obligations or remedies.



[Remainder of page intentionally left blank]




[Signature page follows]



112









 





     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	BORROWER:



CAMPUS CREST COMMUNITIES 

OPERATING PARTNERSHIP, LP, a Delaware 

limited liability company



By: Campus Crest Communities GP, LLC, a 

       Delaware limited liability limited

       liability company, its General Partner



By: Campus Crest Communities, Inc., a 

       Maryland corporation, its Sole 

       Member

 	 
	 	By:  	/s/ Donald L. Bobbitt, Jr.	 
	 	 	Donald L. Bobbitt, Jr., its Chief  	 
	 	 	Financial Officer 	 
	 
	 	CAMPUS CREST AT FORT WAYNE, LLC, a 

Delaware limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company,its 

       manager

 	 
	 	By:  	/s/ Donald L. Bobbitt, Jr.	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



[Signatures continue on next page]




Construction Loan and Security Agreement Signature Page



 









 






     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	BORROWER:



CAMPUS CREST AT FORT COLLINS, LLC, a 

Delaware limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company,its 

       manager

 	 
	 	By:  	/s/ Donald L. Bobbitt, Jr.	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 
	 	CAMPUS CREST AT CLARKSVILLE, LLC, a 

Delaware limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company, its 

       manager

 	 
	 	By:  	/s/ Donald L. Bobbitt, Jr.	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 
	 	CAMPUS CREST AT AMES, LLC, a Delaware 

limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company,its 

       manager

 	 
	 	By:  	/s/ Donald L. Bobbitt, Jr.	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



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Construction Loan and Security Agreement Signature Page



 









 






     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	ADMINISTRATIVE AGENT:



THE PRIVATEBANK AND TRUST 

COMPANY, an Illinois state chartered bank

 	 
	 	By:  	/s/ Alison Dempsey	 
	 	 	Name:  	Alison Dempsey	 
	 	 	Title:  	Associate Managing Director	 
	 



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Construction Loan and Security Agreement Signature Page



 









 






     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	LENDER:



THE PRIVATEBANK AND TRUST 

COMPANY, an Illinois state chartered bank

 	 
	 	By:  	/s/ Alison Dempsey	 
	 	 	Name:  	Alison Dempsey	 
	 	 	Title:  	Associate Managing Director	 
	 



[Signatures continue on next page]




Construction Loan and Security Agreement Signature Page



 









 






     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	LENDER:



CAPITAL ONE BANK

 	 
	 	By:  	/s/ Edward Kang	 
	 	 	Name:  	Edward Kang	 
	 	 	Title:  	Vice President	 
	 



[Signatures continue on next page]




Construction Loan and Security Agreement Signature Page



 









 






     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	LENDER:



BANK OF THE WEST

 	 
	 	By:  	/s/ Nathan R. Podratz	 
	 	 	Name:  	Nathan R. Podratz	 
	 	 	Title:  	Vice President	 
	 
	 	 	 
	 	By:  	/s/ Benjamin Arroyo	 
	 	 	Name:  	Benjamin Arroyo	 
	 	 	Title:  	Vice President	 
	 



Construction Loan and Security Agreement Signature Page




 









 








SCHEDULE 1




COMMITMENT AMOUNT/PERCENTAGE



	 	 	 	 	 	 	 	 	 
	Bank	 	Commitment Amount	 	Commitment Percentage
	 
	 	 	 	 	 	 	 	 
	The PrivateBank and Trust
Company

120 S. LaSalle Street

Chicago, Illinois 60603

Attn: Nathan R. Podratz
	 	$	17,583,707.68	 	 	 	33 1/3	%
	 
	 	 	 	 	 	 	 	 
	Capital One Bank

499 Thornall Street, 11th Floor

Edison, NJ 08837

Attn: Edward Kang
	 	$	17,583,707.66	 	 	 	33 1/3	%
	 
	 	 	 	 	 	 	 	 
	Bank of the West 

500 Capitol Mall, Suite 1200

Sacramento, CA 95814

Attn: Sarah Candy
	 	$	17,583,707.66	 	 	 	33 1/3	%






SCHEDULE 1




 









 








SCHEDULE 3.3(b)




Principal
Payments



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Ft.	 	Ft.	 	 
	 	 	Ames	 	Collins	 	Wayne	 	Clarksville
	November 1, 2012-November 1, 2013
	 	$	13,150	 	 	$	15,600	 	 	$	12,250	 	 	$	13,850	 
	Extension Term
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	December 1, 2013-November 1, 2014
	 	$	13,975	 	 	$	16,550	 	 	$	13,000	 	 	$	14,000	 






SCHEDULE 3.3(b)





 











 





SCHEDULE 6.1




Organizational Chart







SCHEDULE 6.1









 





EXHIBIT A-1




Ames Legal Description


Lot One, Grand Aspen Subdivision, Fourth Addition, Ames, Story County, Iowa, according to the
Plat recorded October 28, 2010 as Instrument No. 10-10702




EXHIBIT A-1









 








EXHIBIT A-2




Clarksville Legal Description


Land in Montgomery County, Tennessee, described as follows:



Beginning at an iron pin (old) in the southern right-of-way of Old Trenton Rd, said iron
pin being North 66 degrees 06 minutes 54 seconds West 168 67 feet from the centerline
intersection of Wilma Rudolph Blvd. and Old Trenton Rd:



Thence leaving the right-of-way of Old Trenton Rd South 21 degrees 16 minutes 13 seconds
East 36 81 feet to an iron pin (new) in the northwestern right-of-way of Wilma Rudolph
Blvd.:



Thence continuing with said northwestern right-of-way for the following 5 calls:



South 46 degrees 55 minutes 27 seconds West 299 52 feet to a concrete monument (old): Thence
South 33
degrees 49 minutes 22 seconds West 153 66 feet to a concrete monument (old):



Thence South 46 degrees 56 minutes 48 seconds West 502.69 feet to a concrete monument (old):
Thence South 59 degrees 55 minutes 06 seconds West 132 82 feet to a concrete monument (old):
Thence South 30 degrees 51 minutes 09 seconds West 172 24 feet to a concrete monument (old), said
monument being the
northeast corner of the James D Greenfield, ET UX, Trustee, Revocable Living Trust Property, as
recorded in Official Record Volume (O R V) 948, Page 1432, in the Register’s Office of Montgomery
County Tennessee (R.O.M.C.T.):



Thence leaving the said northwestern right-of-way and with the North line of the said Greenfield
property, South 81 degrees 45 minutes 56 seconds West 480.04 feet to an iron pin (new):



Thence continuing with the said Greenfield property, South 45 degrees 46 minutes 11 seconds West
39 75 feet to an iron pin (new), said iron pin being the southeast corner of the Herbert Morlang,
ET UX property, as recorded in O R V 142, Page 898, R.O.M.C T :



Thence with the East line of the said Morlang property, North 07 degrees 24 minutes 56
seconds East 553 12 feet to an iron pin (new), said iron pin being in the South right-of-way
of Nolen Rd :



Thence with the said South right-of-way for the following 5 calls: North 66 degrees 29 minutes 28
seconds East 358.83 feet to an iron pin (new): Thence North 70 degrees 10 minutes 03 seconds East
140.00 feet to an iron pin (new):



Thence North 71 degrees 33 minutes 58 seconds East 392 26 feet to an iron pin (new): Thence on a
curve to the left, said curve having a radius of 185 00 feet, an arc length of 209 41 feet, a
chord bearing of North 39 degrees 08 minutes 18 seconds East, a chord distance of 198 41 feet, a
delta angle of 64 degrees 51 minutes 24 seconds, and a tangent of 117 53 feet to an iron pin
(new): Thence North 06 degrees 42 minutes 37 seconds East 187 31 feet to an iron pin (new), said
iron pin being in the southern right-of-way of Old Trenton Rd:



Thence with the said southern right-of-way, South 59 degrees 48 minutes 57 seconds East 362.94
feet to the point of beginning



Said Tract contains 13 944 Acres (607,410 2 sq. ft.) more or less



Being the same property conveyed to Campus Crest at Clarksville, LLC, a Delaware limited liability
company, by deed from Michael E, Collins, Chapter 11 Trustee in the Bankruptcy Case of Billy James
Mace of record in Volume 1358, page 1482, Register’s Office of Montgomery County, Tennessee









EXHIBIT A-2









 








EXHIBIT A-3




Fort Collins Legal Description


THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF LARIMER, STATE OF
COLORADO, AND IS DESCRIBED AS FOLLOWS:



Parcel One:



Leasehold created by Ground Lease dated June 23, 2009, amended by that certain First Amendment
to Ground
Lease Agreement dated December 2009, as further amended by that certain Second Amendment to Ground
Lease Agreement, dated March 2010, as further amended by that certain Third Amendment to Ground
Lease
Agreement dated June 30, 2010, and as further amended by that certain Fourth Amendment to Ground
Lease
Agreement dated November 11, 2010, executed by Colorado State University Research Foundation
(successor
by name change to A & M Research Foundation), a Colorado non-profit corporation, as Lessor and
Campus
Crest at Fort Collins, LLC, a Delaware limited liability company, as lessee as referenced in the
document entitled
Memorandum of Ground Lease, which was recorded November
__, 2010 at Reception No. __________



Tracts of land being a portion of Tract C, Windtrail Townhomes P.U.D., First Replat; a portion of
Lot 1, Centre For Advanced Technology P.U.D., Ninth Filing and a tract of land located in the
Section 23, Township 7 North, Range 69 West of the 6th P M , City of Fort Collins, County of
Larimer, State of Colorado being more particularly described as follows:



Considering the North line of the Southwest Quarter of said Section 23 as bearing North
89°20’42” West and with all bearings contained herein relative thereto:



COMMENCING at the Center Quarter Corner of said Section 23; thence along the North line of said
Southwest Quarter, North 89°20’42” West, 190.90 feet to the Point of Beginning; thence, South
42°19’51” West, 268.76 feet; thence along a non tangent curve concave to the Southwest having a
central angle of 01°06’42” with a radius of 310.00 feet, an arc length of 6.02 feet and the chord
of which bears North 51°44’37” West, 6.02 feet; thence, South 37°42’02” West, 2.50 feet; thence
along a curve concave to the Southwest having a central angle of 37°42’02” with a radius of 307.50
feet, an arc length of 202.33 feet and the chord of which bears North 71°08’59” West, 198.70 feet;
thence, North 90°00’00” West, 683.48 feet; thence, North 00°00’00” East, 78.83 feet; thence, North
90°00’00” East, 325.83 feet; thence, North 00°00’00” East, 196.69 feet; thence North
90°00’00” East, 127.48 feet; thence along a non tangent curve concave to the Southeast
having a central angle of 29°26’43”, with a radius of 95.00 feet, an arc length of 48.82 feet and
the chord of which bears North 30°17’06” East, 48.29 feet; thence, North 45°00’00” East, 198.96
feet; thence along a curve concave to the Southeast having a central angle of 45°00’00”
with a radius of 135.00 feet, an arc length of 106.03 feet and the chord of which bears North
67°30’00” East, 103.32 feet; thence North 90°00’00” East, 174.13 feet; thence along a curve concave
to the Southwest having a central angle of 31°13’40”, with a radius of 135.00 feet, an arc length
of 73.58 feet and the chord of which bears North 74°23’10” West, 72.67 feet; thence, South
58°46’20” East, 174.67 feet; thence along a curve concave to the Northeast having a
central angle of 20°02’33” with a radius of 65.00 feet, an arc length of 22.74 feet and the chord
of which bears South 68°47’36” East, 22.62 feet; thence South 16°02’21” West, 14.04 feet; thence
along a non tangent curve concave to the Northwest having a central angle 81°40’01” with a radius
of 79.00 feet, an arc length of 112.60 feet and the chord of which bears North 61°12’49” East,
103.31 feet; thence along a non tangent curve concave to the Southwest having a central angle
06°37’33” with a radius of 483.00 feet, an arc length of 55.85 feet and the chord of which bears
South 76°27’16” East, 55.82 feet; thence along a non tangent curve concave to the Southeast having
a central angle 84°08’41” with a radius of 9.13 feet,







EXHIBIT A-3-1









 







an arc length of 13.41 feet and the chord of which bears South 64°02’29” West, 12.23
feet; thence along a non tangent curve concave to the Northwest having a central angle 72°00’17”
with a radius of 129.73 feet, an arc length of 163.03 feet and the chord of which bears South
57°58’18” West, 152.51 feet; thence, South 00°00’00” West, 51.64 feet; thence along a curve
concave to the Northwest having a central angle
42°19’51” with a radius of 141.00 feet, an arc
length of 104.17 feet and the chord of which bears South 21°09’56” West, 101.82 feet; thence South
42°19’51” West, 49.73 feet to the Point of Beginning.




(To be known as Lot 1 of “The Grove”)




ALSO:



COMMENCING at the Center Quarter Corner of said Section 23; thence, along the East line of said
Southwest Quarter, South 00°18’18” West, 454.05 feet; thence, North 89°41’42” West,
217.38 feet to the Point of Beginning, said point being on the West line of Centre Avenue; thence
along said West line being on a curve concave to the Southeast having a central angle of 02°22’10”
with a radius of 644.00 feet, an arc length of 26.63 feet and the chord of which bears South
21°02’56” West, 26.63 feet; thence, North 70°08’10” West, 200.97 feet; thence, North
72°18’05” West, 81.16 feet; thence, North 55°59’37” West, 31.08 feet; thence, North
88°01’35” West, 64.24 feet; thence, South 85°05’16” West, 76.05 feet; thence, South 56°13’17”
West, 88.75 feet; thence, North 58°27’48” West, 36.77 feet; thence, North 38°00’23” West, 41.52
feet; thence, North 49°29’33” West, 33.86 feet; thence, North 76°42’38” West, 67.45 feet; thence,
South 87°16’35” West, 104.27 feet; thence, North 74°48’07” West, 72.23 feet; thence, North
86°57’04” West, 79.88 feet; thence, South 76°32’31” West, 54.11 feet; thence, South
61°32’02” West, 52.89 feet; thence, South 76°32’00” West, 39.82 feet; thence, South
70°39’15” West, 57.13 feet; thence, South 65°50’46” West, 131.84 feet; thence, South
57°04’01” West, 72.37 feet; thence, South 87°21’57” West, 19.12 feet; thence, North 37°30’00”
West, 152.48 feet; thence, North 64°36’09” East, 2.42 feet; thence along a curve concave to the
Northwest having a central angle of 12°06’09” with a
radius of 50.00 feet, an arc length of 10.56
feet and the chord of which bears North 58°33’04” East, 10.54 feet; thence, North
52°30’00” East, 104.82 feet; thence along a curve concave to the Southeast having a
central angle of 37°30’00” with a radius of 417.00 feet, an arc length of 272.93 feet and the
chord of which bears North 71°15’00” East, 268.08 feet; thence, North 90°00’00” East, 23.96 feet;
thence, North 00°00’00” East, 0.50 feet; thence, North 90°00’00” East, 683.48 feet; thence along a
curve concave to the Southwest having a central angle of 37°42’02” with a radius of 242.50 feet,
an arc length of 159.56 feet and the chord of which bears South 71°08’59” East, 156.70 feet;
thence, South 37°42’02” West, 0.50 feet; thence along a curve concave to the Southwest having a
central angle of 13°18’05” with a radius of 242.00 feet, an arc length of 56.18 feet and the chord
of which bears South 45°38’56” East, 56.06 feet;
thence, South 38°59’53” East, 100.01 feet; thence
along a curve concave to the Northeast having a central angle of 22°07’36” with a
radius of 308.00 feet, an arc length of 118.94 feet and the chord of which bears South 50°03’41”
East, 118.21 feet; thence, South 19°20’48” East, 14.32 feet to the Point of Beginning.




(To be known as Lot 2 and Outlot B of “The Grove”)




Parcel Two:



Beneficial rights as created by Easement Agreement by and between Campus Crest at Fort Collins,
LLC, a Delaware limited liability company and Colorado State University Research Foundation, a
Colorado Non-Profit
corporation, recorded November __, 2010 at Reception No. ________ of the County of Larimer, State of
Colorado real estate records.




EXHIBIT A-3-2









 








EXHIBIT A-4




Fort Wayne Legal Description



LEGAL DESCRIPTION


Part of Blocks “B” and “C” in George L. Ashley’s Homestead Addition to Allen County, Indiana,
as shown in Plat Book 8, page 84 in the Office of the Recorder of Allen County, Indiana, described
as follows:



Commencing at a 5/8 inch rebar at the intersection of the south line of said Block “C” with the
west right-of-way line of St. Joe Road as established by Document No. 87-15828; thence North 61
degrees 48 minutes 14 seconds West, on the south line of said Block “C”, also being the north line
of Lots 58-61 in Shoaff Park River Estates, Section B as recorded in Plat Book 40, pages 60 and 61,
a distance of 392.32 feet to a 5/8 inch rebar at the POINT OF BEGINNING; thence continuing North 61
degrees 48 minutes 14 seconds West on said line, also being the north line of Lots 56 and 57 in
said Shoaff Park River Estates, Section B and the north line of Lots 1 -3 in Shoaff Park River
Estates, recorded in Plat Book 38, pages 123-126 a distance of 420.06 feet to a one inch pipe at
the southwest corner of said Block “C” thence North 27 degrees 30 minutes 40 seconds East, on the
west line of said Block “C”, also being the east line of Lots 4-10 in said Shoaff Park River
Estates, 524.70 feet to the northwest corner of said Lot “C”, also being the Southwest corner of
said Block “B”; thence continuing North 27 degrees 30 minutes 40 seconds East, on the west line of
said Lot “B”, also being the east line of Lots 10 and 11 in said Shoaff Park River Estates, 202.57
feet to a 5/8 inch rebar near a wood post at the northwest corner of said Block “B”; thence South
89 degrees 49 minutes 00 seconds East, on the north line of said Block “B”, a distance of 824.86
feet to a one inch pipe at the westerly corner of a 0.74 acre parcel described in Document
#92-5445; thence South 56 degrees 27 minutes 31 seconds East on the southerly line of said 0.74
acre parcel, 267.08 feet to a 5/8 inch rebar on the west right-of-way line of said St. Joe Road;
thence on said west right-of-way line, being a curve to the left having a radius of 2,906.79 feet
and a chord of 34 10 feet bearing South 37 degrees 18 minutes 02
seconds West, an arc length of 34.10 feet to a 5/8 inch rebar; thence continuing on said west right-of-way line, South 37 degrees 47
minutes 20 seconds West, 206.91 feet to a 5/8 inch rebar; thence continuing on said west
right-of-way line South 37 degrees 05 minutes 22 seconds West, parallel with and 45.00 feet west of
the center line of said St. Joe Road, 236.17 feet to a 5/8 inch rebar on the north line of a parcel
described in Deed Book 552, page 1; thence North 61 degrees 30 minutes 10 seconds West, on said
north line, being parallel with the north line of said Block “C”, a distance of 179.49 feet to a
one-half inch rebar at the northwest corner of said parcel described in Deed Book 552, page 1;
thence South 37 degrees 05 minutes 22 seconds West, parallel with the center line of said St, Joe
Road, 100.00 feet to a 5/8 inch rebar at the southwest corner of said parcel described in Deed Book
552, page 1, said point being on the north line of said Block “C”; thence North 61 degrees 30
minutes 10 seconds West, on said north line, 212.37 feet to a 5/8 inch rebar at the northwest
corner of a 4.69 acre parcel described in Document No. 92-9044; thence South 37 degrees 05 minutes
22 seconds West, on the west line of said 4.69 acre parcel, being parallel with the center line of
said St, Joe Road, 528.35 feet to the POINT OF BEGINNING




Also known us:




EXHIBIT A-4-1









 







Part of Blocks “B” and “C” in George L Ashley’s Homestead Addition to Allen County,
Indiana, as shown in Plat Book 8, page 84 in the Office of the Recorder of Allen County,
Indiana, described as follows:



Commencing at a 5/8 inch rebar, with a “Karst” identification cap, at the intersection of the
southerly line of said Block “C” with the westerly right-of-way line of St. Joe Road as
established by Document No. 87-15828; thence North 64 degrees 33 minutes 55 seconds West (Geodetic
Basis), along the southerly line of said Block “C”, also being the northerly line of Lots 58-61 in
Shoaff Park River Estates, Section B as recorded in Plat Book 40, pages 60 and 61, a distance of
392.32 feet to a 5/8 inch rebar, with a “Karst” identification cap, at the POINT OF BEGINNING;
thence continuing North 64 degrees 33 minutes 55 seconds West along said line, also being the
northerly line of Lots 56 and 57 in said Shoaff Park River Estates, Section B and the northerly
line of Lots 1-3 in Shoaff Park River Estates, recorded in Plat Book 38, pages 123-126 a distance
of 419.79 feet to a one inch pipe at the southwest corner of said Block “C” thence North 24 degrees
43 minutes 21 seconds East, on the westerly line of said Block “C”, also being the easterly line
of Lots 4-10 in said Shoaff Park River Estates, 524.64 feet to the northwest corner of said Lot
“C”, also being the Southwest corner of said Block “B”; thence continuing North 24 degrees 43
minutes 21 seconds East, on the west line of said Lot “B”, also being the east line of Lots 10 and
11 in said Shoaff Park River Estates, 201.55 feet to a 12-inch diameter wood post at the northwest
corner of said Block “B”; thence North 87 degrees 20 minutes 38 seconds East, along the northerly
line of said Block “B”, a distance of 824.25 feet to a five-eighths inch diameter iron rebar stake
with a cap stamped “FORESIGHT CONSULTING, LLC — BOUNDARY” at the northwesterly corner of a 0 74
acre parcel described in Document No. 2007043910; thence South 59 degrees 13 minutes 57 seconds
East along the southerly line of said 0.74 acre parcel, 267.54 feet to a five-eighths inch
diameter iron rebar stake with a cap stamped “FORESIGHT CONSULTING, LLC — BOUNDARY” on the
westerly right-of-way line of said St. Joe Road; thence along said westerly right-of-way line,
being a non-tangent curve to the left having a radius of 2,916.02 feet and a chord of 33.11 feet
bearing South 34 degrees 29 minutes 27 seconds West, an arc length of 33.11 feet to a five-eighths
inch diameter iron rebar stake with a cap stamped “FORESIGHT CONSULTING, LLC — BOUNDARY”; thence
continuing on said westerly right-of-way line, South 34 degrees 59 minutes 47 seconds West, 206.93
feet to a five-eighths inch diameter iron rebar stake with a cap stamped “FORESIGHT CONSULTING,
LLC — BOUNDARY”; thence continuing along said westerly right-of-way line South 34 degrees 17
minutes 02 seconds West, parallel with and 45.00 feet westerly of the center line of said St. Joe
Road, 236.68 feet to a five-eighths inch diameter iron rebar stake with a cap stamped “FORESIGHT
CONSULTING, LLC — BOUNDARY” on the northerly line of a
parcel described in Document No. 980088253;
thence North 64 degrees 16 minutes 14 seconds West, along said northerly line, being parallel with
the northerly line of said Block “C”, a distance of 183.48 feet to a five-eighths inch diameter
iron rebar stake with a cap stamped “FORESIGHT CONSULTING, LLC — BOUNDARY” at the northwest corner
of said parcel described in Document No. 980088253; thence South 34 degrees 16 minutes 21 seconds
West, parallel with the center line of said St. Joe Road, 100.00 feet to a five-eighths inch
diameter iron rebar stake with a cap stamped “FORESIGHT CONSULTING, LLC — BOUNDARY” at the
southwest corner of said parcel described in Document No. 980088253 said point being on the
northerly line of said Block “C”; thence North 64 degrees 16 minutes 14 seconds West, along said
northerly line, 208.20 feet to a 5/8 inch rebar at the northwest corner of a 4.69 acre parcel
described in Document No. 2007059842; thence South 34 degrees 19 minutes 43 seconds West, along the
westerly line of said 4.69 acre parcel, being parallel with the center line of said St. Joe Road,
528.33 feet to the POINT OF BEGINNING, Containing 14.74 Acres, more or less













EXHIBIT A-4-2











 





EXHIBIT B




Form of Note



PROMISSORY NOTE



			
	$_______
	 	Date: November ___, 2010






     THIS PROMISSORY NOTE, (the “Note”) is made in Chicago, Illinois as of November ___, 2010, by
and among CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP, a Delaware limited partnership,
CAMPUS CREST AT FORT WAYNE, LLC, a Delaware limited liability company, CAMPUS CREST AT FORT
COLLINS, LLC, a Delaware limited liability company, CAMPUS CREST AT CLARKSVILLE, LLC, a Delaware
limited liability company, and CAMPUS CREST AT AMES, LLC, a Delaware limited liability company
(collectively, jointly, and severally, “Borrower”) for the benefit of
__________________________
(“Lender”), in the original principal amount of _____________ ___/100
Dollars ($_______), as provided herein and as provided in that certain Construction Loan and
Security Agreement (the “Loan Agreement”) dated as of even date herewith by and among Borrower, The
PrivateBank and Trust Company (“Administrative Agent”) and the other financial institutions
identified therein.



     Borrower promises to pay to the order of Lender at the principal office of Administrative
Agent in Chicago, Illinois, on or before the Maturity Date (as defined in the Loan Agreement), the
lesser of (i) _____________ and ___/100 Dollars ($_______), or (ii) the aggregate principal amount
of all Loans made to Borrower by the Lender under and pursuant to the Loan Agreement. Capitalized
words and phrases not otherwise defined herein shall have the meanings assigned thereto in the Loan
Agreement.



     Borrower further promises to pay interest on the unpaid principal amount of all Loans
outstanding from time to time, at the rate(s) and at the time(s) set forth in the Loan Agreement.
The outstanding principal amount of all Loans shall be repaid by Borrower on the Maturity Date,
unless payable sooner pursuant to the provisions of the Loan Agreement. Payments of both principal
and interest are to be made in lawful money of the United States of America.



     This Note evidences indebtedness incurred under, and is subject to the terms and provisions
of, the Loan Agreement, to which Loan Agreement reference is hereby made for a statement of the
terms and provisions under which this Note may or must be paid prior to the Maturity Date, or
pursuant to which the Maturity Date may be accelerated. The holder of this Note is entitled to all
of the benefits and security provided for in the Loan Agreement.



     Except for such notices as may be expressly required under the Loan Documents, Borrower waives
presentment, demand, notice, protest, and all other demands, or notices, in connection with the
delivery, acceptance, performance, default, or enforcement of this Note, and assents to any
extension or postponement of the time of payment or any other indulgence. No failure to exercise,
and no delay in exercising, any rights under any of the Loan Documents by Administrative Agent of
any holder of this Note shall operate as a waiver of such rights.






EXHIBIT B-1









 








     This Note shall be governed and construed in accordance with the laws of the State of
Illinois applicable to contracts made and to be performed entirely within such State.



EXHIBIT B-2









 





     IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the date set forth above.



	 	 	 	 	 
	 	BORROWER:



CAMPUS CREST COMMUNITIES 
OPERATING PARTNERSHIP, LP, a Delaware 
limited
liability company




By:   Campus Crest Communities GP, LLC, a
          Delaware limited liability limited
liability 
         company, its General Partner




By:   Campus Crest Communities, Inc., a
         Maryland corporation, its Sole Member
 



	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Chief Financial Officer 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	CAMPUS CREST AT FORT WAYNE, LLC, a Delaware limited liability company




By:   Campus Crest Properties, LLC, a North 
         Carolina limited liability company,
its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	CAMPUS CREST AT FORT COLLINS, LLC, a Delaware limited liability company



By:   Campus Crest Properties, LLC, a North  
         Carolina limited liability company,
its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 



EXHIBIT B-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	CAMPUS CREST AT CLARKSVILLE, LLC, a Delaware limited liability company



By:   Campus Crest Properties, LLC, a North 
         Carolina limited liability company,
its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	CAMPUS CREST AT AMES, LLC, a Delaware 
limited liability company




By:   Campus Crest Properties, LLC, a North 
         Carolina limited liability company,
its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 








EXHIBIT B-4









 








EXHIBIT C-1




Ames Permitted Exceptions


Those matters set forth in Schedule B the Loan Policy of Title Insurance issued to the
Administrative Agent by Chicago Title Insurance Company in connection with the Loan (order #230243)









EXHIBIT C-1









 








EXHIBIT C-2




Clarksville Permitted Exceptions


Those matters set forth in Schedule B the Loan Policy of Title Insurance issued to the
Administrative Agent by Chicago Title Insurance Company in connection with the Loan (File Number
#525534)









EXHIBIT C-2









 








EXHIBIT C-3




Fort Collins Permitted Exceptions


Those matters set forth in Schedule B the Loan Policy of Title Insurance issued to the
Administrative Agent by Chicago Title Insurance Company in connection with the Loan (File No.
#1463228)









EXHIBIT C-3









 








EXHIBIT C-4




Fort Wayne Permitted Exceptions


Those matters set forth in Schedule B the Loan Policy of Title Insurance issued to the
Administrative Agent by Chicago Title Insurance Company in connection with the Loan (Policy
#000416750)





EXHIBIT C-4











 





EXHIBIT D-1




Ames Budget







EXHIBIT D-1




 









 








EXHIBIT D-2




Clarksville Budget







EXHIBIT D-2




 









 








EXHIBIT D-3




Fort Collins Budget







EXHIBIT D-3




 









 








EXHIBIT D-4




Fort Wayne Budget







EXHIBIT D-4





 












 





EXHIBIT E




Form of Assignment and Acceptance






ASSIGNMENT AND ACCEPTANCE



     Reference is made to the Construction Loan and Security Agreement dated as of November 19,
2010 (as the same may be amended, modified or supplemented from time to time in accordance with its
terms, the “Loan Agreement”) among (i) CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP, LP, a
Delaware limited partnership, (ii) CAMPUS CREST AT FORT WAYNE, LLC, a Delaware limited liability
company, (iii) CAMPUS CREST AT FORT COLLINS, LLC, a Delaware limited liability company, (iv) CAMPUS
CREST AT CLARKSVILLE, LLC, a Delaware limited liability company, and (v) CAMPUS CREST AT AMES, LLC,
a Delaware limited liability company (collectively, jointly, and severally, “Borrower”), (viii) the
several banks and financial institutions from time to time parties to the Loan Agreement
(collectively, the “Lenders”) and (ix) The PrivateBank and Trust Company, an Illinois state
chartered bank, as agent for the Lenders (in such capacity the “Administrative Agent”). Terms
defined in the Loan Agreement are used herein with the same meaning. This Assignment and
Acceptance, between the Assignor (as identified on Schedule 1 hereto) and the Assignee (as
identified on Schedule 1 hereto) is dated as of the Effective Date (as specified on Schedule 1
hereto, the “Effective Date”).



     The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor, without
recourse to the Assignor, as of the Effective Date, the interest (the “Assigned Interest”) in and
to the Assignor’s rights and obligations under the Loan Agreement with respect to the credit
facility described in the Loan Agreement (the “Assigned Facility”), in a principal amount and
percentage of the credit facility as set forth in Schedule 1.



     The Assignor (a) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Loan
Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Agreement, any other Loan Document or any other instrument or document furnished
pursuant thereto, other than that it has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any adverse claim; (b) makes
no representation or warranty and assumes no responsibility with respect to the financial condition
of Borrower or the performance or observance by Borrower of any of its obligations under the Loan
Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto
or thereto; and (c) has delivered a copy of the Note held by it evidencing the Assigned Facility
and requests that Administrative Agent exchange such Note for a new Note payable to the Assignor
(if the Assignor has retained any interest in the Assigned Facility) and a new Note payable to the
Assignee in the respective amounts which reflect the assignment being made hereby (and after giving
effect to any other assignments which have become effective on the Effective Date).



EXHIBIT E-1




 









 








     The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received a copy of the Loan Documents, together
with copies of the financial statements delivered pursuant thereto and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and without reliance upon
the Assignor, Administrative Agent or any other person which has become a Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Agreement; (d) appoints and authorizes
Administrative Agent to take such action as agent on its behalf and to exercise such powers under
the Loan Agreement as are delegated to Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of
the Loan Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Loan Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its obligation pursuant to
Section 3.8(c) of the Loan Agreement to deliver the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee’s exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under the Loan Agreement,
or such other documents as are necessary to indicate that all such payments are subject to such tax
at a rate reduced by an applicable tax treaty.



     This Assignment and Acceptance is conditioned upon the acceptance of Administrative Agent
pursuant to the Loan Agreement. The execution of this Assignment and Acceptance by Administrative
Agent is evidence of this consent.



     From and after the Effective Date, Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue subsequent to the
Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments
by Administrative Agent for the period prior to the Effective Date or with respect to the making of
this Assignment directly between themselves.



     From and after the Effective Date (a) the Assignee shall be a party to the Loan Agreement and,
with respect to the Assigned Interest, have the rights and obligations of a Lender thereunder and
under the other Loan Documents and shall be bound by the provisions thereof, and (b) the Assignor
shall, with respect to the Assigned Interest, relinquish its rights and be released from its
obligations under the Loan Agreement.



     This Assignment and Acceptance shall be governed by and construed in accordance with the laws
of the State of Illinois.



EXHIBIT E-2




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed by their respective duly authorized officers.



	 	 	 	 	 
	 	ASSIGNOR:

 	 
	 	 	

 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE:

 	 
	 	 	

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ACCEPTED BY ADMINISTRATIVE AGENT



THE PRIVATEBANK AND TRUST COMPANY,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT E-3




 









 








SCHEDULE 1

TO

ASSIGNMENT AND ACCEPTANCE




	 	 	 	 	 

	NAME OF ASSIGNOR: 

	 	 
	 	 
	 
	 	 	 	 
	NAME OF ASSIGNEE:

	 	 
	 	 
	 
	 	 	 	 
	EFFECTIVE DATE OF ASSIGNMENT: 	 	 






	 	 	 	 	 	 	 	 	 

	 PRINCIPAL AMOUNT ASSIGNED


	 	  ASSIGNEE’S PRO RATA SHARE

	 (ASSIGNEE’S COMMITMENT):




	 	  IN LOAN
	 	 
	 $

	 	 	 	  %	 	 	 	 






SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE





 









 








EXHIBIT F




FORM OF DISBURSEMENT REQUEST



[BORROWER’S LETTERHEAD]



DRAW REQUEST NO.    
                 



	 	 	 	 	 	 
	TO:

	The PrivateBank and Trust Company (“Administrative Agent”)



	LOAN NO.


	 	 	DATE 	 	 
	
PROJECT
	 	 	 	 	 
	
LOCATION
	 	 	 	 	 
	
APPLICABLE 
	 	 	 	 	 
	PROPERTY
	 	 	 	 	 
	BORROWER
	 	 	 	 	 
	 
	 	 	 	 	 
	 
	 	 	 	 	 






	 	 	 
	FOR PERIOD ENDING  	 	 




     In accordance with the Construction Loan and Security Agreement in the amount of
$52,751,123.00 dated November 19, 2010, among Borrower, Administrative Agent and the Lenders as
defined therein, Borrower requests that $          
               
                be advanced from Loan proceeds.
The proceeds should be credited to the account of                 
        
 

Account No.              
                  
         , at         
                    
                    
                    
                    
                    
                    .



	 	 	 	 	 	 	 

	1.

	 	CURRENT DRAW REQUEST FOR HARD COSTS
	$	 	 	 
	
2.

	 	
CURRENT DRAW REQUEST FOR SOFT COSTS
	
$	 	 	 
	
3.

	 	
TOTAL DRAW REQUEST
	
$	 	 	 






	 	 	 	 	 	 

	AUTHORIZED SIGNER:
	 	 
	 

	 	 	Dated: 	 	 






EXHIBIT F





 











 





EXHIBIT G




LETTERS OF CREDIT PROVISIONS



     Section 1 The Letter of Credit Commitment.



     (a) Subject to the terms and conditions set forth herein, (i) the Issuing Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 1(a) of
Exhibit G from time to time on any Business Day during the period from the date of this
Agreement until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of
Borrower, and to amend Letters of Credit previously issued by it, in accordance with Section
2 of Exhibit G, and (B) to honor drafts under the Letters of Credit; and (ii) the
Lenders severally agree to participate in Letters of Credit issued for the account of Borrower;
provided that the Issuing Lender shall not be obligated to make any Letter of Credit
Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in,
any Letter of Credit if as of the date of such Letter of Credit Extension, (x) the outstanding
amount of all Letter of Credit Obligations and all Loan Advances would exceed the combined
Commitments, or (y) the outstanding amount of the Letter of Credit Obligations would exceed the
Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions
hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly
Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.



     (b) The Issuing Lender shall be under no obligation to issue any Letter of Credit if:




     (i) any order, judgment or decree of any tribunal or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or any
Applicable Laws applicable to the Issuing Lender or any request or directive (whether or not
having the force of Applicable Laws) from any tribunal with jurisdiction over the Issuing
Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall impose upon the
Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in
effect on the date of this Agreement, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the date of this Agreement
and which the Issuing Lender in good faith deems material to it;




     (ii) the expiry date of such requested Letter of Credit would occur more than twelve
(12) months after the date of issuance unless the Required Lenders have approved such expiry
date;




     (iii) the expiry date of such requested Letter of Credit would occur after the Letter
of Credit Expiration Date, unless all the Lenders have approved such expiry date;




     (iv) the issuance of such Letter of Credit would violate one or more policies of the
Issuing Lender;



EXHIBIT G-1









 







     (v) such Letter of Credit is in an initial amount less than Twenty-Five Thousand
Dollars ($25,000.00), or is to be used for a purpose other than for Project Costs or
denominated in a currency other than Dollars; or




     (vi) default of any Lender’s obligations to fund under this Section 1 of
Exhibit G exists or any Lender is at such time a Defaulting Lender, unless the
Issuing Lender has entered into satisfactory arrangements with the other Lenders to
eliminate the Issuing Lender’s risk with respect to such Defaulting Lender.



     (c) The Issuing Lender shall be under no obligation to amend any Letter of Credit if (i) the
Issuing Lender would have no obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (ii) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.



     Section 2 Procedures for Issuance and Amendment of Letters of Credit.



     (a) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
Borrower delivered to the Issuing Lender (with a copy to Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by Borrower. Such Letter of
Credit Application must be received by the Issuing Lender and Administrative Agent not later than
11:00 a.m., at least two (2) Business Days (or such later date and time as the Issuing Lender may
agree in a particular instance in its sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the
Issuing Lender: (i) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (ii) the amount thereof; (iii) the expiry date thereof; (iv) the name and address of
the beneficiary thereof; (v) the documents to be presented by such beneficiary in case of any
drawing thereunder; (vi) the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (vii) such other matters as the Issuing Lender may require. In
the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Issuing Lender (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day);
(C) the nature of the proposed amendment; and (D) such other matters as the Issuing Lender may
require.



     (b) Promptly after receipt of any Letter of Credit Application, the Issuing Lender will
confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has
received a copy of such Letter of Credit Application from Borrower and, if not, the Issuing Lender
will provide Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of
confirmation from Administrative Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions hereof, the Issuing
Lender shall, on the requested date, issue a Letter of Credit for the account of Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance with the Issuing
Lender’s usual and customary business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Lender a participation in such Letter of



EXHIBIT G-2









 




Credit in an amount equal to the product of such Lender’s Commitment Percentage times the
amount of such Letter of Credit.




     (c) If the Borrower so requests in any applicable Letter of Credit Application, the Issuing
Lender may, in its sole discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an “Evergreen Letter of Credit”); provided that any such Evergreen Letter
of Credit must permit the Issuing Lender to prevent any such renewal at least once in each
twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Nonrenewal Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the Issuing Lender, the Borrower shall not be required to make a specific
request to the Issuing Lender for any such renewal. Once an Evergreen Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require) the Issuing Lender to
permit the renewal of such Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the Issuing Lender shall not permit any
such renewal if (i) the Issuing Lender would have no obligation at such time to issue such Letter
of Credit in its renewed form under the terms hereof, or (ii) it has received notice (which may be
by telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal
Notice Date (A) from the Administrative Agent that the Required Lenders have elected not to permit
such renewal or (B) from the Administrative Agent, any Lender or the Borrower that one or more of
the applicable conditions specified in this Section 2 of Exhibit G is not then
satisfied.



     (d) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the Issuing Lender will
also deliver to Borrower and Administrative Agent a true and complete copy of such Letter of Credit
or amendment.



     Section 3 Drawings and Reimbursements; Funding of Participations.



     (a) Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the
Issuing Lender shall notify Borrower and Administrative Agent thereof. Not later than 11:00 a.m.,
on the date of any payment by the Issuing Lender under a Letter of Credit (each such date, an
“Honor Date”), Borrower shall reimburse the Issuing Lender through Administrative Agent in an
amount equal to the amount of such drawing. If Borrower fails to so reimburse the Issuing Lender
by such time, Administrative Agent shall promptly notify each Lender of the Honor Date, the amount
of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Commitment
Percentage thereof. In such event, Borrower shall be deemed to have requested an advance of Base
Rate Loan to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, subject
to the amount of the unutilized portion of the combined Commitments and the conditions set forth in
Section 5 of the Agreement (other than the delivery of a Disbursement Request). Any notice
given by the Issuing Lender or Administrative Agent pursuant to this subsection may be given by
telephone if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.



EXHIBIT G-3









 





     (b) Each Lender (including the Lender acting as the Issuing Lender) shall upon any notice
pursuant to the subsection above make funds available to Administrative Agent for the account of
the Issuing Lender at the Principal Office in an amount equal to its Commitment Percentage of the
Unreimbursed Amount not later than 1:00 p.m., on the Business Day specified in such notice by
Administrative Agent, whereupon, subject to the provisions of the subsection below, each Lender
that so makes funds available shall be deemed to have made an advance of a Base Rate Loan to
Borrower in such amount. Administrative Agent shall remit the funds so received to the Issuing
Lender.



     (c) With respect to any Unreimbursed Amount that is not fully refinanced by an advance of a
Base Rate Loan because the conditions set forth in Section 5 of the Agreement cannot be
satisfied or for any other reason, Borrower shall be deemed to have incurred from the Issuing
Lender a Letter of Credit Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which Letter of Credit Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to
Administrative Agent for the account of the Issuing Lender pursuant to the subsection above shall
be deemed payment in respect of its participation in such Letter of Credit Borrowing and shall
constitute a participation in such Letter of Credit Borrowing from such Lender in satisfaction of
its participation obligation under this Section 3 of Exhibit G.



     (d) Until each Lender funds its Loan Advance or participation in a Letter of Credit Borrowing
pursuant to this Section 3 of Exhibit G to reimburse the Issuing Lender for any
amount drawn under any Letter of Credit, interest in respect of such Lender’s Commitment Percentage
of such amount shall be solely for the account of the Issuing Lender.



     (e) Each Lender’s obligation to make a Loan Advance or participation in such Letter of Credit
Borrowing to reimburse the Issuing Lender for amounts drawn under Letters of Credit, as
contemplated by this Section 3 of Exhibit G, shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Issuing Lender, Borrower or any other
person for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default or an
Unmatured Default, or (iii) any other occurrence, event or condition, whether or not similar to any
of the foregoing; provided, however, that each Lender’s obligation to make a Loan Advance
pursuant to this Section 3 of Exhibit G is subject to the conditions set forth in
Section 5.1 of the Agreement being satisfactory to Administrative Agent. No such
reimbursement shall relieve or otherwise impair the obligation of Borrower to reimburse the Issuing
Lender for the amount of any payment made by the Issuing Lender under any Letter of Credit,
together with interest as provided herein.



     (f) If any Lender fails to make available to Administrative Agent for the account of the
Issuing Lender any amount required to be paid by such Lender pursuant to the foregoing provisions
of Section 3(b) of Exhibit G by the time specified in Section 3(b) of
Exhibit G, the Issuing Lender shall be entitled to recover from such Lender (acting through
Administrative Agent), on demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is immediately available to the Issuing
Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the



EXHIBIT G-4









 




Issuing Lender submitted to any Lender (through Administrative Agent) with respect to any
amounts owing under this Section 3(f) of Exhibit G shall be conclusive absent
manifest error.




     Section 4 Repayment of Participations.



     (a) At any time after the Issuing Lender has
made a payment under any Letter of Credit and has received from any Lender such Lender’s
participation in a Letter of Credit Borrowing in respect of such payment in accordance with
Section 3 of Exhibit G, if Administrative Agent receives for the account of the
Issuing Lender any payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto
by Administrative Agent), Administrative Agent will distribute to such Lender its Commitment
Percentage (appropriately adjusted, in the case of interest payments, to reflect the period of time
Lender’s participation payment was outstanding) thereof in the same funds as those received by
Administrative Agent.



     (b) If any payment received by Administrative Agent for the account of the Issuing Lender
pursuant to Section 3(a) of Exhibit G is required to be returned (including
pursuant to any settlement entered into by the Issuing Lender in its discretion) each Lender shall
pay to Administrative Agent for the account of the Issuing Lender its Commitment Percentage thereof
on demand of Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from
time to time in effect.



     Section 5 Obligations Absolute. The obligation of Borrower to reimburse the Issuing
Lender for each drawing under each Letter of Credit and to repay each Letter of Credit Borrowing,
shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, but not limited to, the following:



     (a) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;



     (b) the existence of any claim, counterclaim, set-off, defense or other right that Borrower
may have at any time against any beneficiary or any transferee of such Letter of Credit (or any
person for whom any such beneficiary or any such transferee may be acting), the Issuing Lender or
any other person, whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;



     (c) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;



     (d) any payment by the Issuing Lender under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any
payment made by the Issuing Lender under such Letter of Credit to any person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of



EXHIBIT G-5









 




creditors, liquidator, receiver or other representative of or successor to any beneficiary or
any transferee of such Letter of Credit; or




     (e) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, Borrower.



     Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with Borrower’s
instructions or other irregularity, Borrower will immediately notify the Issuing Lender. Borrower
shall be conclusively deemed to have waived any such claim against the Issuing Lender and its
correspondents unless such notice is given as aforesaid.



     Section 6 Role of the Issuing Lender. Each Lender and Borrower agree that, in paying
any drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the person executing or delivering any such document. None of the
Issuing Lender nor any of the respective correspondents, participants or assignees of the Issuing
Lender shall be liable to any Lender for (a) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders or the Required Lenders, as applicable; (b) any
action taken or omitted in the absence of gross negligence or willful misconduct as determined by a
final judgment of a court of competent jurisdiction; or (c) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter of Credit or Letter
of Credit Application. Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at Law or under any
other agreement. None of the Issuing Lender nor any of the respective correspondents, participants
or assignees of the Issuing Lender, shall be liable or responsible for any of the matters described
in Section 1-Section 5 of Exhibit G; provided, however, that
anything in such clauses to the contrary notwithstanding, Borrower may have a claim against the
Issuing Lender, and the Issuing Lender may be liable to Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower which
Borrower proves were caused by the Issuing Lender’s willful misconduct or gross negligence as
determined by a final judgment of a court of competent jurisdiction or the Issuing Lender’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Lender may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the Issuing Lender
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.



     Section 7 Cash Collateral. Upon the request of Administrative Agent, (a) if the
Issuing Lender has honored any full or partial drawing request under any Letter of Credit and



EXHIBIT G-6









 




such drawing has resulted in an Letter of Credit Borrowing, or (b) if, as of the Letter of
Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or
wholly undrawn, Borrower shall immediately Cash Collateralize the then outstanding amount of all
Letter of Credit Obligations (in an amount equal to such outstanding amount determined as of the
date of such Letter of Credit Borrowing or the Letter of Credit Expiration Date, as the case may
be). For the purposes hereof “Cash Collateralize” means to pledge and deposit with or deliver to
Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the
Letter of Credit Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to Administrative Agent and the Issuing Lender (which documents are
hereby consented to by the Lenders). Derivatives of such term shall have corresponding meaning.
Borrower hereby grants Administrative Agent, for the benefit of the Issuing Lender and the Lenders,
a security interest in all such cash and deposit account balances and all proceeds of the
foregoing. Cash collateral shall be maintained in blocked, non-interest bearing deposit accounts
at The PrivateBank and Trust Company.




     Section 8 Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the
Issuing Lender and Borrower when a Letter of Credit is issued, (a) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (b) the rules of the Uniform Customs and Practice for Documentary Credits, as
most recently published by the International Chamber of Commerce (the “ICC”) at the time of
issuance (including the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.



     Section 9 Letter of Credit Fees. Borrower shall pay to Administrative Agent for the
account of each Lender in accordance with its Commitment Percentage a Letter of Credit fee for each
Letter of Credit equal to the greater of (a) One Thousand Dollars ($1,000.00) or (b) two percent
(2.0%) per annum times the daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter of Credit), provided
however, the maximum Letter of Credit fee for a specific Letter of Credit shall be Ten Thousand
Dollars ($10,000.00). Such fee for each Letter of Credit shall be due and payable on the date the
Letter of Credit Application is delivered to the Issuing Lender and on the same date of each
successive year thereafter until the Letter of Credit Expiration Date. At any time that the
Principal Balance is accruing interest at the Default Rate, the Letter of Credit fee shall equal
seven percent (7.0%).


     Section 10 Conflict with Letter of Credit Application. In the event of any conflict
between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall
control.






EXHIBIT G-7









 





EXHIBIT H




Required Insurance



General Information





	 	1.	 	 All insurance policies referred to herein shall be in form and substance acceptable to The PrivateBank
	 
	 	2.	 	 The PrivateBank must receive evidence / certificates of insurance at least ten (10) business
days prior to closing.
	 
	 	3.	 	 Proof of coverage must be on the following forms:

Commercial Property: ACORD 28 - EVIDENCE OF COMMERCIAL PROPERTY INSURANCE form.

Personal Property: ACORD 27 EVIDENCE OF PERSONAL PROPERTY INSURANCE form.

Liability Insurance: Must be written on ACORD 25S or its equivalent.

	 
	 	4.	 	 All property policies shall contain a standard mortgage clause in favor of The PrivateBank
and shall provide for written notice to The PrivateBank of any non-renewal
or cancellation or non-renewal. Certificates with disclaimers will NOT be accepted.
	 
	 	5.	.  	 The borrower must be the named
insured.    ____________________________________________________________
	 
	 	6.	 	 Commercial / Personal Property & Builders Risk certificates must show The PrivateBank as

Mortgagee and or Lender’s Loss Payee as follows:





The PrivateBank, its successors or assigns

Commercial Real Estate

70 West Madison, 8th Floor

Chicago, IL 60602





	 	 	 	(The PrivateBank may be shown as “Mortgagee and or Lender’s Loss Payee As Their Interests
May Appear” until the insurance agent receives release of interest from the prior lender. At that time, the insurance
policies will need to be endorsed to show The PrivateBank as Mortgagee and or Lender’s Loss
Payee.
	 
	 	7.	 	 The property address must be identified as the insured property.





	 	 	 	 	 
	 	
 	 
	 	
 	 
	 	
 	 
	 	
 	 
	 




	 	8.	 	All insurance companies must have the following ratings from AM Best’s Rating Guide:





	 	 	 	 	 	 	 	 	 

	 

	 	Policy Rating
	 	A-
	 	Financial Rating
	 	VII







	 	9.	 	 The insurance documentation must be signed by an authorized representative.





EXHIBIT H-1




 









 








Specific Requirements





	 	1.	 	 If the property policy is a blanket policy or limit, The PrivateBank must receive a schedule
of the amount allocated to the property / rents or the amounts allocated to the property must be indicated on the
certificate.
	 
	 	2.	 	 Coverage must be on an “all risk” (Special Perils), 100% replacement cost basis without deduction for foundations
and footings, and WITHOUT co-insurance. The co-insurance must be waived or an Agreed Amount endorsement
must be included and either “No Co-insurance”
or “Agreed Amount” must be indicated on the certificate.
	 
	 	3.	 	 Ordinance or Law coverage providing for demolition and increased cost of construction, must be provided and
indicated on the certificate.
	 
	 	4.	 	 Other coverages such as earthquake, boiler and machinery (which includes the mechanics of the building,
such as elevators), and flood will be required when these risks are present.
	 
	 	5.	 	 Rent Loss or Business Income coverage shall be in an amount equal to 100% of the projected annual rents or
revenue with a minimum period of indemnity of 12 months, or such greater period as The PrivateBank
may require. This coverage needs to be written on a Gross Rental Income, Gross Profits or Extended
Period of Indemnity form, not on an actual loss sustained basis which may terminate as soon as the premises
are tenantable or operational.
	 
	 	6.	 	 The PrivateBank and                                                                                 
must be named as Additional Insured for all general liability coverage, with a minimum limit of $2,000,000 for any one
occurrence.





Additional Requirements — Construction Loans





	 	1.	 	 Coverage must be All Risk Builders Risk Course of Construction, including earthquake and flood when these
risks are present. The Builders Risk insurance amount must cover at least 100% of hard costs and not less than
25% of recurring soft costs.
	 
	 	2.	 	 Under the Evidence of Property form — The builders risk coverage should make the following statement:
“The General Contractor (name) is a named insured with respect to builders’ risk.”
	 
	 	3.	 	 Rent coverage must be 100% of the anticipated annual rents (assuming full occupancy) written on a delayed
income basis. The policy shall allow for partial or full occupancy.
	 
	 	4.	 	 Coverage should also include permission to occupy clause.





EXHIBIT H-2




 









 








EXHIBIT I




Debt Service Coverage Ratio Test



	 	 	 

	Borrower:

	 	CAMPUS CREST COMMUNITIES OPERATING

PARTNERSHIP, LP

CAMPUS CREST AT FORT WAYNE, LLC

CAMPUS CREST AT FORT COLLINS, LLC

CAMPUS CREST AT CLARKSVILLE, LLC

CAMPUS CREST AT AMES, LLC
	 
	 	 
	Project Name:

Determination Date


(March 31, June 30, September 1
or December 31):

	 	_______________




_______________
	 
	 	 
	Calculation Period (12 month
period following the Determination Date):

	 	

_______________
	 
	 	 
	Debt Service:

	 	_______________
	 
	 	 
	Debt Amount:

	 	_______________






GROSS REVENUES




	 	 	 	 	 	 	 
	Tenant	 	 	 	Rent
	 
	 	 
	 

	 	 
	 
	 	 





GROSS REVENUES: _______________




OPERATING EXPENSES




Real estate taxes: _______________

Insurance: _______________

Maintenance: _______________

Management Fee: _______________

Replacement Reserve: _______________

Other Miscellaneous: _______________




OPERATING EXPENSES: _______________




EXHIBIT I-1



 









 









DSCR CALCULATION




Net Operating Income (Gross Revenues less Operating Expenses): _______________




Debt Service: _______________




DSCR (Net Operating Income / Debt Service):_______________




Date: ____________________




	 	 	 	 	 
	 	BORROWER:



CAMPUS CREST COMMUNITIES OPERATING PARTNERSHIP,
LP, a Delaware limited liability company



By: Campus Crest Communities GP, LLC, a 

       Delaware limited liability limited liability 

       company, its General Partner



By: Campus Crest Communities, Inc., a 

       Maryland corporation, its Sole 

       Member


 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Chief Financial Officer 	 
	 	 	 	 
	 
	 	CAMPUS CREST AT FORT WAYNE, LLC, a Delaware
limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company, its 

       manager


 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



EXHIBIT I-2




 









 








	 	 	 	 	 
	 	CAMPUS CREST AT FORT COLLINS, LLC, a Delaware
limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company, its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 
	 	CAMPUS CREST AT CLARKSVILLE, LLC, a Delaware
limited liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company, its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 
	 	CAMPUS CREST AT AMES, LLC, a Delaware limited
liability company



By: Campus Crest Properties, LLC, a North 

       Carolina limited liability company, its manager

 	 
	 	By:  	 	 
	 	 	Donald L. Bobbitt, Jr., its Manager 	 
	 	 	 	 
	 



EXHIBIT I-3