Common use of Defaulting Partner Clause in Contracts

Defaulting Partner. (a) Any Partner that fails to make, when due, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution required to be contributed by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed a “Defaulting Partner” and the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determine, in its sole discretion, that whenever the vote, consent or decision of a Partner or of the Partners is required or permitted pursuant to this Agreement, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. A Partner shall be in default of its obligations and responsibilities under this Agreement (a “Defaulting Partner”) if it is determined in accordance with the provisions of Section 15.4 that any of the following events (a “Default”) has occurred and (if cure is permitted by Section 15.3) remains uncured (it being agreed that a Default by either A/B Partner shall result in both A/B Partners being Defaulting Partners): (a) Any Partner that fails to make, when due, any portion of the Capital Contributions required to be made by if such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate withdraws from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner.Company in violation of this Agreement; (b) If any Partner fails to make, when due, any portion of the Capital Contribution required to be contributed by if such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed has committed fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or a “Defaulting Partner” and material breach of this Agreement or the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determineHoldco LLC Agreement, in each case, either (x) in connection with its sole discretion, that whenever the vote, consent or decision of actions as a Partner or under this Agreement (including, in the case of the Partners is required or permitted pursuant to this AgreementGeneral Partner, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner. (d) The Managing General Partner shall have the right actions in its sole discretion capacity as General Partner); or (y) with respect to either (i)(A) determine that fraud, willful misconduct or gross negligence, whether or not in connection with its actions as a Defaulting Partner shall forfeit to under this Agreement but having a material adverse effect on the non-defaulting Partners as recompense for damages sufferedCompany, and the Partnership shall withhold (for other Project Entities and/or the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery has committed a Transfer Breach ; (c) if a Bankruptcy Event shall occur with respect to any Partner or any general partner of written notice a Partner; (d) with respect to the Defaulting PartnerA/B Partners, cause the Defaulting Partner aggregate of all Deficiency Amounts the A/B Partners (and their permitted successors and assigns) have failed to transfer all of its interest in the Partnership fund is equal to one $20,000,000 or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected and such Deficiency Amounts shall remain unpaid by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance.A/B Partners for more than five (5) Business Days; (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investmentthe Class C LP, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of all Deficiency Amounts the additional amounts payable Class C LP (and its permitted successors and assigns) has failed to fund is equal to $10,000,000 or more and such Deficiency Amounts shall remain unpaid by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(eClass C LP for more than five (5) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for.Business Days; and (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to the Class D LP, the aggregate of all Deficiency Amounts the Class D LP (and its permitted successors and assigns) has failed to fund is equal to $10,000,000 or more and such owner, and hold such owner solely responsible Deficiency Amounts shall remain unpaid by the Class D LP for such defaultmore than five (5) Business Days.

Defaulting Partner. (a) Any If any Limited Partner that fails to makecontribute, when duein a timely manner, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution Commitment required to be contributed by such Limited Partner hereunder or pursuant to this such limited partner's Subscription Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of any such failure to such Partner. If such Partner fails to make such Capital Contribution within five continues for ten Business Days after receipt of such noticewritten notice thereof from the General Partner (a "DEFAULT"), then such Limited Partner (ia) "DEFAULTING Partner") may be designated by the General Partner as in default and shall thereafter be subject to the provisions of this Section 5.3. The General Partner may choose not to designate any Limited Partner as a Defaulting Partner and may agree to waive or permit the cure of any Default by a Limited Partner, subject to such conditions as the General Partner and the Defaulting Partner may agree upon. In the event that a Limited Partner becomes a Defaulting Partner, (I) such Defaulting Partner's Remaining Capital Commitment shall be deemed to be zero (the "Defaulted commitments"), (II) such Defaulting Partner shall have no interest in future Portfolio Investments and no right to contribute capital to future Portfolio Investments, and (III) such defaulting Limited Partner shall be deemed entitled to receive only one-half of the total distributions (including, without limitation, distributions previously made) that it would have been entitled to receive had it not become a “Defaulting Partner” , with the other one-half of such distributions to be applied when and as amounts become distributable, FIRST to the following Sections 10.8(c) through (h) Partnership in an amount equal to the Partnership Expenses, and SECOND, to all Partners other than Defaulting Partners in accordance with their respective Capital Commitments; PROVIDED, that the General Partner, MMC, or any of their respective Affiliates shall apply. (c) have an option to assume the Remaining Capital Commitments of the Defaulting Partner. The Managing General Partner shall have make such adjustments, including, without limitation, adjustments to the right Capital Accounts of the Partners (including, without limitation, the Defaulting Partners), as it determines to determinebe appropriate to give effect to the provisions of this Section 5.3. On any date following a Default by a Defaulting Partner, in such Defaulting Partner shall be required to pay to the Partnership all amounts that such Defaulting Partner would be required to contribute to the Partnership if the Partnership were dissolved as of such date (and its sole discretionassets liquidated at fair market value as of the most recent valuation date). Notwithstanding any other provision of this Section 5.3, that whenever the obligations of any Defaulting Partner to the Partnership hereunder shall not be extinguished as a result of the transactions contemplated by this Section 5.3. Whenever the vote, consent or decision of a Limited Partner or of the Limited Partners is required or permitted pursuant to this Agreement, except as required by Agreement or under the Act, any a Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Limited Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. (a) Any Partner that fails to make, when due, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution required to be contributed by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed a “"Defaulting Partner” " and the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determine, in its sole discretion, that whenever the vote, consent or decision of a Partner or of the Partners is required or permitted pursuant to this Agreement, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. (a) Any Partner that fails to make, when due, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution required to be contributed by such Partner pursuant to this Agreement and the 60 Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed a “"Defaulting Partner” " and the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determine, in its sole discretion, that whenever the vote, consent or decision of a Partner or of the Partners is required or permitted pursuant to this Agreement, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. (a) Any Partner that fails to make, when due, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution required to be contributed by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed a “Defaulting Partner” and the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determine, in its sole discretion, that whenever the vote, consent or decision of a Partner or of the Partners is required or permitted pursuant to this Agreement, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. (a) Any If any Limited Partner that fails to makecontribute, when duein a timely manner, any portion of the Capital Contributions required to be made by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partner, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partner. (b) If any Partner fails to make, when due, any portion of the Capital Contribution Commitment required to be contributed by such Limited Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of any such failure to such Partner. If such Partner fails to make such Capital Contribution within five continues for ten Business Days after receipt of such noticewritten notice thereof from the General Partner (a "DEFAULT"), then such Limited Partner (a "DEFAULTING PARTNER") may be designated by the General Partner as in default and shall thereafter be subject to the provisions of this Section 5.2. The General Partner may choose not to designate any Limited Partner as a Defaulting Partner and may agree to waive or permit the cure of any Default by a Limited Partner, subject to such conditions as the General Partner and the Defaulting Partner may agree upon. In the event that a Limited Partner becomes a Defaulting Partner, (i) such Defaulting Partner's Remaining Capital Commitment shall be deemed to be zero, (ii) such Defaulting Partner shall have no interest in future Portfolio Investments and no right to contribute capital to future Portfolio Investments, and (iii) such Limited Partner shall be deemed entitled to receive only one-half of the total distributions (including, without limitation, distributions previously made) that it would have been entitled to receive had it not become a “Defaulting Partner” , with the other one-half of such distributions to be applied when and as amounts become distributable, FIRST to the following Sections 10.8(c) through Partnership in an amount equal to such Limited Partner's PRO RATA share of the accrued and unpaid and/or anticipated expenses of the Partnership (hincluding any amounts payable upon dissolution or to fund indemnification obligations), and SECOND, to all Partners other than Defaulting Partners in accordance with their respective Capital Commitments; PROVIDED, that the General Partner, MMC, or any of their respective Affiliates (other than any natural person) shall apply. have an option to assume the Remaining Capital Commitments of the Defaulting Partner. From time to time it may be necessary (cbecause of irregular or insufficient cashflows or otherwise) for the Partnership, the General Partner or the Manager to advance payment of expenses allocable to the interest of a Defaulting Partner whose Remaining Capital Commitment has been deemed to be zero pursuant to this Section 5.2 and, before any amounts may be distributed by the Partnership pursuant to the immediately preceding sentence, the amount of any such payment, plus interest (at the Applicable Federal Rate, determined on and calculated from the date of such payment), shall be deducted from future distributions by the Partnership in respect of such Defaulting Partner's interest and paid by the Partnership to the Person that made such advance payment. The Managing General Partner shall have make such adjustments, including, without limitation, adjustments to the right Capital Accounts of the Partners (including, without limitation, the Defaulting Partners), as it determines to determinebe appropriate to give effect to the provisions of this Section 5.2. On any date following a Default by a Defaulting Partner, in such Defaulting Partner shall be required to pay to the Partnership all amounts that such Defaulting Partner would be required to contribute to the Partnership if the Partnership were dissolved as of such date (and its sole discretionassets liquidated at fair market value as of the most recent valuation date). Notwithstanding any other provision of this Section 5.2, that whenever the obligations of any Defaulting Partner to the Partnership hereunder shall not be extinguished as a result of the transactions contemplated by this Section 5.2. Whenever the vote, consent or decision of a Limited Partner or of the Limited Partners is required or permitted pursuant to this AgreementAgreement or under the Partnership Law, except as required by the Act, any a Defaulting Partner shall not be entitled to participate in such vote or consent, or to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a Limited Partner. (d) The Managing General Partner shall have the right in its sole discretion to either (i)(A) determine that a Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Interest (including 20% of its Capital Account balance); or (ii) upon delivery of written notice to the Defaulting Partner, cause the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners (or any other Person or Persons to the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% of such Defaulting Partner’s Capital Account balance. (e) In the event that a Partner defaults in making all or any portion of a Capital Contribution to the Partnership, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between the Managing General Partner and any Defaulting Partner and no delay in exercising any right, power or remedy conferred in this Section 10.8 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (g) Each Partner acknowledges by its execution hereof that it has been admitted to the Partnership in reliance upon its agreements under this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such default.

Defaulting Partner. (a) Any Except as otherwise expressly provided under this Agreement, in the event that a Partner that fails to make, when due, make any portion of the Capital Contributions Contribution payment required to be made by paid hereunder, and such failure continues for five (5) Business Days after receipt of written notice of such failure from the General Partner, then such Partner pursuant to this Agreement shall be in default (a “Defaulting Partner”) and the Subscription Agreement to which such Partner is a party may, in the discretion of the Managing General Partneraddition to such other rights and remedies as may be available to it under applicable law, be charged an additional amount on the unpaid balance of any such Capital Contribution at the Default Rate from the date such balance was due and payable through the date full payment for such balance is actually made, and subject to the extent such additional amount is not otherwise paid such additional amount may be deducted from any distribution otherwise payable to such Partnerprovisions of this Section 3.3. (b) If any Partner fails to makeExcept as provided in this Section 3.3(b), when due, any portion of the Capital Contribution required to be contributed by such Partner pursuant to this Agreement and the Subscription Agreement to which such Partner is a party, then the Partnership shall promptly provide written notice of such failure to such Partner. If such Partner fails to make such Capital Contribution within five Business Days after receipt of such notice, then (i) such Partner shall be deemed a “Defaulting Partner” and the following Sections 10.8(c) through (h) shall apply. (c) The Managing General Partner shall have the right to determine, in its sole discretion, that whenever the vote, consent or decision of a Partner or of the Partners is required or permitted pursuant to this Agreement, except as required by the Act, any Defaulting Partner shall not be entitled to participate in such vote or consent, or make any further Capital Contributions to make such decision, and such vote, consent or decision shall be tabulated or made as if such Defaulting Partner were not a the Partnership unless otherwise approved by the General Partner. (d) . The Managing General Partner shall impose a default charge on the Defaulting Partner (as calculated pursuant to Section 3.5(d)) and will have the right option to take one or more of the following steps: (i) offer each non-Defaulting Partner the opportunity to elect to increase its Commitment by its pro rata share of the difference between such Defaulting Partner’s Commitment and Capital Contributions, such pro rata share determined on the basis of such non-Defaulting Partner’s Commitment at the time of default compared to the total Commitments of all non Defaulting Partners that elect to increase their Commitments at such time (if a non Defaulting Partner increases its Commitment under this Section 3.3(b)(i), then such non Defaulting Partner’s Percentage Interest shall be adjusted to reflect the increased Commitment of such Partner); (ii) reduce the Commitment of the Defaulting Partner and/or enter into any other agreement with the Defaulting Partner as the General Partner determines in its sole discretion to either discretion; (i)(Aiii) determine that a reduce the Defaulting Partner shall forfeit to the non-defaulting Partners as recompense for damages suffered, and the Partnership shall withhold (for the account of such other Partners), all distributions of Operating Cash Flow and Capital Cash Flow and liquidating distributions that such Defaulting Partner would otherwise receive, and (B) effect a forfeiture by such Partner of 20% of its aggregate Partnership Partner’s Interest (including 20% of its including, without limitation, the Defaulting Partner’s Percentage Interest and Capital Account balance) by up to one hundred percent (100%) and reallocate such reduced Percentage Interest and Capital Account among all Partners other than the Defaulting Partner on terms established by the General Partner in its discretion; (iv) sell the Interest attributable to the unfulfilled Commitment to the other investors; (v) assist the Defaulting Partner in selling its Interest in the Partnership; (vi) accept a late Capital Contribution from the Defaulting Partner (with interest calculated pursuant to Section 3.3(d)); (vii) exclude the Defaulting Partner from any vote or other consent of the Partners or Limited Partners; (iiviii) upon delivery reduce the amount of written notice any distribution or any other payment that would otherwise be paid to the Defaulting Partner, cause Partner pursuant to this Agreement and apply such amount to the amount due and owing by the Defaulting Partner to transfer all of its interest in the Partnership to one or more other Partners in accordance with Section 5.7; (or any other Person or Persons to ix) require the extent not purchased by any Partner) selected by the Managing General Partner in its sole discretion, which have agreed to purchase such interest at a transfer price equal to at least 80% redemption of such Defaulting Partner; and/or (ix) pursue and enforce all of the Partnership’s Capital Account balanceother rights and remedies against the Defaulting Partner that may exist under this Agreement or applicable law. (ec) In the event that a Partner defaults in making all or any portion For avoidance of a Capital Contribution to the Partnershipdoubt, the Managing General Partner may require all of the non-defaulting Partners to increase their Capital Contributions by an aggregate amount equal to the Capital Contribution of the Defaulting Partner on which it defaulted; provided that no Partner will be required to contribute any amounts in excess of its Unfunded Commitment without such Partner’s consent. If the Managing General Partner elects to require such increase, the Managing General Partner shall deliver to each non-defaulting Partner written notice of such default as promptly as practicable after its occurrence and, thereafter, with respect to each Investment, the Managing General Partner shall as promptly as practicable deliver to each such non-defaulting Partner a Capital Call Notice in respect of the Capital Contribution which the Defaulting Partner failed to make. Subject to the provisos set forth above in this Section 10.8(e), such Capital Call Notice shall (i) call for a Capital Contribution by each such non-defaulting Partner in an amount equal to the amount of such non-defaulting Partner’s pro rata share of such additional Capital Contribution, based on the Unfunded Commitments of the Partners, and (ii) specify a Payment Date for such Capital Contribution, which date shall be at least ten calendar days from the date of delivery of such Capital Call Notice by the Managing General Partner. If any Partner is not required to make a Capital Contribution in accordance with this Section 10.8(e) because such Capital Contribution would be in excess of such Partner’s Unfunded Commitment, then, subject to the provisos set forth in this Section 10.8(e), the Managing General Partner shall send to each other Partner which is not subject to such constraint a Capital Call Notice providing the amount of any additional Capital Contribution which such other Partner shall be required to make as a result of such excess not being funded by the Partner which is subject to such constraint, which amount shall bear the same ratio to the aggregate of the additional amounts payable by all such other non-defaulting Partners as such other Partner’s Unfunded Commitment bears to the Unfunded Commitments of all such other non-defaulting Partners. The provisions of this Section 10.8(e) shall operate successively until either all Partners are subject to such constraint or the full amount of the defaulted Capital Contribution of the Defaulting Partner has been provided for. (f) No right, power or remedy conferred upon the Managing General Partner in this Section 10.8 3.3 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 10.8 3.3 or now or hereafter available at law or in equity or by statute or otherwise. No course of dealing between among the Managing General Partner and any Defaulting Partner Partners and no delay in exercising any right, power or remedy conferred in this Section 10.8 3.3, or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (gd) Each The default charge imposed on a Defaulting Partner acknowledges pursuant to this Section 3.3 shall equal the lesser of (i) the Default Rate or, (ii) the highest rate permitted by its execution hereof that it has been admitted applicable law, on any past due amount from the date such amount became due until the date on which such payment is received by the Partnership (by application of withheld distributions or otherwise). Any such default charge so paid by a Defaulting Partner shall be distributed to the Partnership non-Defaulting Partners. Amounts contributed by a Defaulting Partner in reliance upon its agreements under respect of the default charge as required by this Agreement and in its Subscription Agreement, that the Managing General Partner and the Partnership may have no adequate remedy at law Section 3.3 shall not be considered a Capital Contribution for a breach of such agreements and that damages resulting from a breach of such agreements may be impossible to ascertain at the time hereof or of such breach. (h) For purposes of this Section 10.8, if any Defaulting Partner is any Entity the equity owners of which consist of two or more unaffiliated investors, the Managing General Partner may, in its sole discretion, treat the owner of such entity that was responsible for such default (and not such entity or any general partner, managing member or other controlling person of such entity) as the Defaulting Partner and may invoke the rights, powers and remedies specified herein separately with respect to such owner, and hold such owner solely responsible for such defaultAgreement.