Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail to contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), all, some or one of the other Members who are not themselves Defaulting Members (“Other Members”) shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty percent (20%) per annum, or (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, a pledge agreement and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to the Company on behalf of the Non-Contributing Member, which advance shall be deemed to be a Capital Contribution by the Non-Contributing Member. The foregoing remedies set forth in this Section 4.5A shall be in addition to and not in limitation of the remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contribution.

FAILURE TO CONTRIBUTE. A. Should In the event that any Partner shall fail to make all or any portion of such Partner's required capital contribution to the capital of this Partnership as set forth in this Agreement within seven (7) days after written notice by any General Partner that such capital contribution is due, then such Partner shall be "in default" of this Agreement ("Defaulting Partner"). In the event of such default, the other Partners shall have the right (but not the obligation) to elect to convert the capital contribution which it made to a loan and to advance as a loan to the Partnership the amount equal to the capital contribution that such Defaulting Partner failed to make (collectively "Default Loan"). The Partners electing to make such Default Loan hereunder are hereinafter referred to as "Lending Partners." The Lending Partners shall determine amongst themselves the proportion in which the Default Loan shall be made, or, if they fail to agree, then pro rata based on their relative percentage Interests in the Partnership. In the event the Lending Partners have advanced such monies as a Default Loan to the Partnership, then and in such event, the following shall be applicable, (i) any Developer fail to contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), all, some or one of the other Members who are not themselves Defaulting Members (“Other Members”) such Default Loan shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution a demand loan which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty eighteen percent (2018%) per annum, or annum ("Default Rate"); (ii) the reference rate all monies paid as repayment of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing such Default Interest Rate is a default rate of interest. Accordingly, Loan shall first be applied to the extent costs and expenses of the Lending Partners, including attorneys' fees and costs with respect to such Default Loan which shall bear interest at the Default Interest Rate exceeds that which would otherwise be permitted by lawfrom and after the date any such expenses are incurred to and through the date such monies are repaid, such excess secondly toward accrued and unpaid interest is intended to reflect a liquidated damages amount for and finally, toward the default of outstanding principal balance; (iii) interest on the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below Default Loan shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by due and payable monthly and all such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any an expense of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, a pledge agreement and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to the Company on behalf of the Non-Contributing MemberPartnership, which advance shall be deemed to be a Capital Contribution by the Non-Contributing Member. The foregoing remedies set forth in this Section 4.5A shall be in addition to and not in limitation of the remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contribution.monthly

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail If a Class A Member fails to contribute timely its Development Stage Contribution, Proportionate Share of any Additional Capital Contribution when due or fails to make any Additional Capital Contribution within the 5-Business Day period following the 30-day period described in Section 2.2 (iia "NONCONTRIBUTING MEMBER") any then the other Class A Member fail to contribute on shall have the date requested by following remedies in the Executive Committee either following order: (a) its Additional Development Land Contribution pursuant Subject to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), all, some or one the agreement of the Noncontributing Member, the other Members Class A Member may contribute the Noncontributing Member's Proportionate Share of the Additional Capital Contribution. A contribution on behalf of a Noncontributing Member is referred to as a "DEFICIT CONTRIBUTION" and shall be added to the Noncontributing Member's Capital Account. A Class A Member (the "CONTRIBUTING MEMBER") who are not themselves Defaulting Members (“Other Members”) makes a Deficit Contribution shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty percent (20%) per annum, or (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree receive distributions under Section 3.1 that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended distributed to reflect a liquidated damages amount for the default of Noncontributing Member until the Non-Contributing Member and receives a special adjusting distribution equal to the Deficit Contribution plus 12% per annum cumulative but not a penalty. Instead, such excess interest constitutes a good faith estimate by compounded (the Members to estimate the actual damages resulting from the Non-Contributing Member’s default"SPECIAL ADJUSTMENT"). The Members agree that such estimate is reasonableno portion of the Special Adjustment shall be treated as interest by any Member. Notwithstanding anything herein to the contrary, all distributions which Amounts that would otherwise be made distributable to the Non-Noncontributing Member shall be paid directly to the Contributing Member until it has received the amount of the Special Adjustment and the Special Adjustment shall be treated on the books of the Company as distributions to the Noncontributing Member under Sections 4.3A(1)(b)(v)3.1 or 12.3, 6 and 14.3the distributions shall not affect the allocations of Net Income or Net Loss. If the Members do not agree to a Deficit Contribution with a Special Adjustment, below then, and only then shall be paid over (b) apply. (b) Subject to the Other Members who had agreement of the Noncontributing Member, the other Class A Member may make a Deficit Contribution and adjust the Percentage Interests and the Capital Account balances of the Contributing Member and the Noncontributing Member, as follows: divide (i) the amount of the Deficit Contribution which was made Non-Contribution Loans, in proportion to by the outstanding balance(sContributing Member by (ii) the total Unreturned Capital (including any Deficit Contributions) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans and multiply the quotient thereof by 100% (the "CAPITAL ADJUSTMENT"). The result of the foregoing computation shall be expressed as a percentage, and rounded to the Non-nearest hundredth place, and the percentage amount shall be added to the Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts 's Percentage Interest and shall be deemed to have been distributed to subtracted from the Non-Noncontributing Member's Percentage Interest. At the time of the adjustment in the Percentage Interests, the Capital Account balances of the Contributing Member and applied by the Non-Contributing Noncontributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged adjusted so that, if the aggregate Capital Account balances of the Members were distributed in cash to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver pursuant to Section 3.1 (immediately following the adjustment to the Other Percentage Interests pursuant to this paragraph), each Member's Capital Account balance would equal zero after such distribution. If the Members such agreements and instruments requested by any of the Other Members do not agree to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-a Deficit Contribution Loan, including, without limitation, a pledge agreement and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to the Company on behalf of the Non-Contributing Member, which advance shall be deemed to be with a Capital Contribution by Adjustment then, and only then shall (c) apply. (c) The other Class A Member may buy the Non-Contributing Noncontributing Member. The foregoing remedies set forth in this 's Membership Interest pursuant to Section 4.5A shall be in addition to and not in limitation of the remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contribution11.3(b). (d) THE MEMBERS ACKNOWLEDGE THAT THE REMEDIES IN THIS AGREEMENT FOR A MEMBER'S FAILURE TO CONTRIBUTE CAPITAL ARE REASONABLE UNDER THE CIRCUMSTANCES THAT EXIST AS OF THE EXECUTION DATE.

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail If either Member fails to contribute timely by --------------------- the Contribution Date its Development Stage Contribution, or share of the Additional Capital Contribution so called for (ii) any said Member fail to contribute on being the date requested by the Executive Committee either (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“"Non-Contributing Member”"), allthe other Member, some or one so long as it has contributed its share of the other Members who are not themselves Defaulting Members Additional Capital Contribution so called for (“Other Members”) shall be entitled to make non-recourse loans secured by the "Contributing Member"), may advance the amount of the Non-Contributing Member’s Interest 's share of the Additional Capital Contribution to the Company, in the Company which event: (“Non-i) The amount so advanced shall constitute a loan (each a "Contribution Loans”Loan") to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing advanced (any Member failed to make. If more than one (1) Other Member elects to make who makes such a Non-Contribution Loan to the Non-Contributing being a "Contribution Loan Member, then "). Each such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is equal to the greater of the following (the “Default Interest Rate”): (i) twenty Base Rate plus five percent (205%), compounded monthly (but such rate shall not, in any event, exceed the maximum rate permitted by law), and shall be repayable at any time without penalty. While such Contribution Loan is outstanding, any distributions from the Company to which the Non- Contributing Member would otherwise be entitled shall be paid by the Company to the Contribution Loan Member, first, to pay accrued interest, and then in reduction of such Contribution Loan. Upon repayment of such Contribution Loan prior to the effectiveness of an election for adjustment of Sharing Ratios described in Section 6.2(b)(ii) per annumbelow, or the Non- Contributing Member shall be restored to its full rights hereunder as if it had timely responded to the call for the subject Additional Capital Contribution. (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of If the Non-Contributing Member and has not a penalty. Insteadrepaid any Contribution Loan, with interest as described in Section 6.2(b)(i) hereof, in full within sixty (60) days after the date on which such excess interest constitutes a good faith estimate by Contribution Loan was made, then, within forty-five (45) days following the Members to estimate expiration of such sixty (60)-day period, the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made Contribution Loan Member may give written notice to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over of its intention to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) avail itself of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to remedy described in this Section 6.2(b)(ii). If the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Non- Contributing Member and applied by repays the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, includingwith interest as described in Section 6.2(b)(i) hereof, without limitationwithin thirty (30) days following receipt of the notice referred to in the preceding sentence, a pledge agreement it shall be restored to its full rights and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly authorities hereunder as if it had timely responded to the Company call for an Additional Capital Contribution. If the Non- Contributing Member does not do so, however, the advance by the Contributing Member on behalf of the Non-Contributing Member (without interest), together with the Contributing Member's own Additional Capital Contribution, shall be credited to the Contributions Account of the Contributing Member, and the Sharing Ratios of each Member shall then be recalculated, by establishing fractions, the numerators of which advance shall be the respective amounts in the Contributions Accounts of the Members, and the denominator of which shall be the aggregate of the amounts in HIW's Contributions Account and MG's Contributions Account (after crediting all amounts paid by the Contributing Member pursuant to this Section 6.2(b) to its Contribution Account). The Sharing Ratios, as thus recalculated, shall thereafter be the "Sharing Ratios" of each of the Members, and the definition thereof contained herein shall be deemed so modified. In such event, the Contribution Loan in respect of which such adjustment is made shall be extinguished. In all other respects, however, such adjustment of Contributions Accounts and recalculation of Sharing Ratios shall be the sole remedy for the failure to be repay a Capital Contribution by the Loan to a Non-Contributing Member. The foregoing remedies set Exhibit "B" ----------- attached hereto and by this reference made a part hereof sets forth in this Section 4.5A shall be in addition to and not in limitation an example of the remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contributioncalculation of such decrease and increase in Sharing Ratios.

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail to If a Member does not contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either time required all or any portion of a Capital Contribution that Member is required to make as provided in this Agreement, the Company may exercise, on notice to that Member (the "Defaulting Member"), one or more of the following remedies: (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or taking such action (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), all, some or one of the other Members who are not themselves Defaulting Members (“Other Members”) shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty percent (20%) per annum, or (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, court proceedings) as the Managers may deem appropriate to obtain payment by the Defaulting Member of the portion of the Defaulting Member's Capital Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Defaulting Member; (b) permitting the other Members in proportion to their Percentage Interests or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Defaulting Member's Capital Contribution that is in default, with the following results: (i) the sum advanced constitutes a pledge agreement loan from the Lending Member to the Defaulting Member and a UCC-1 financing statement. The Other Members shall advance the Non-Capital Contribution Loan directly of that sum to the Company on behalf by the Defaulting Member pursuant to the applicable provisions of this Agreement, (ii) the principal balance of the Non-Contributing loan and all accrued unpaid interest thereon is due and payable in whole on the tenth (10th) day after written demand therefor by the Lending Member to the Defaulting Member, which __________________________________________________________________________________________ deeproot Growth Runs Deep Fund, LLC ‐ Operating Agreement (iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Member, (iv) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or after termination of the Company) instead shall be deemed paid to be the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal), (v) the payment of the loan and interest accrued on it is secured by a Capital Contribution by security interest in the Non-Contributing Defaulting Member. The foregoing remedies 's Membership Interest, as more fully set forth in paragraph 15.02 of this Section 4.5A shall be Agreement, and (vi) the Lending Member has the right, in addition to the other rights and not remedies granted to it pursuant to this Agreement or available to it at law or in limitation equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Defaulting Member; (c) exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas; (d) reducing the Defaulting Member's Membership Interest or other interest in the Company; (e) subordination of the Defaulting Member's Membership Interest to the nondefaulting Member; (f) a forced sale of the Defaulting Member's Membership Interest at Fair Value and upon the terms of purchase as provided in Article XIV; (g) forfeiture of the Defaulting Member's Membership Interest; or (h) exercising any other rights and remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contributionat law or in equity.

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail to If a Member does not contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either time required all or any portion of a Capital Contribution that Member is required to make as provided in this Agreement, the Company may exercise, on notice to that Member (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (the “Non-Contributing Defaulting Member”), all, some one or one of the other Members who are not themselves Defaulting Members (“Other Members”) shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following remedies: (the “Default Interest Rate”): a) taking such action (i) twenty percent (20%) per annum, or (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, court proceedings) as the Managers may deem appropriate to obtain payment by the Defaulting Member of the portion of the Defaulting Member’s Capital Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Defaulting Member; (b) permitting the other Members in proportion to their Percentage Interests or in such other percentages as they may agree (the “Lending Member,” whether one or more), to advance the portion of the Defaulting Member’s Capital Contribution that is in default, with the following results: (i) the sum advanced constitutes a pledge agreement loan from the Lending Member to the Defaulting Member and a UCC-1 financing statement. The Other Members shall advance the Non-Capital Contribution Loan directly of that sum to the Company on behalf by the Defaulting Member pursuant to the applicable provisions of this Agreement, (ii) the principal balance of the Non-Contributing loan and all accrued unpaid interest thereon is due and payable in whole on the tenth (10th) day after written demand therefor by the Lending Member to the Defaulting Member, (iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, which advance together with all interest accrued on it, is repaid to the Lending Member, (iv) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or after termination of the Company) instead shall be deemed paid to be the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal), (v) the payment of the loan and interest accrued on it is secured by a Capital Contribution by security interest in the Non-Contributing Defaulting Member. The foregoing remedies ’s Membership Interest, as more fully set forth in paragraph 15.02 of this Section 4.5A shall be Agreement, and (vi) the Lending Member has the right, in addition to the other rights and not remedies granted to it pursuant to this Agreement or available to it at law or in limitation equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Defaulting Member; (c) exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas; (d) reducing the Defaulting Member’s Membership Interest or other interest in the Company; (e) subordination of the Defaulting Member’s Membership Interest to the nondefaulting Member; (f) a forced sale of the Defaulting Member’s Membership Interest at Fair Value and upon the terms of purchase as provided in Article XIV; (g) forfeiture of the Defaulting Member’s Membership Interest; or (h) exercising any other rights and remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contributionat law or in equity.

FAILURE TO CONTRIBUTE. A. Should (i) any Developer fail to If a Member does not contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either time required all or any portion of a Capital Contribution that Member is required to make as provided in this Agreement, the Company may exercise, on notice to that Member (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (the “Non-Contributing Defaulting Member”), all, some one or one of the other Members who are not themselves Defaulting Members (“Other Members”) shall be entitled to make non-recourse loans secured by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Member in the amount of the cash Capital Contribution which the Non-Contributing Member failed to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following remedies: (the “Default Interest Rate”): a) taking such action (i) twenty percent (20%) per annum, or (ii) the reference rate of Bank of America NT&SA, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, court proceedings) as the Managers may deem appropriate to obtain payment by the Defaulting Member of the portion of the Defaulting Member’s Capital Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Defaulting Member; (b) permitting the other Members in proportion to their Percentage Interest or in such other percentages as they may agree (the “Lending Member,” whether one or more), to advance the portion of the Defaulting Member’s Capital Contribution that is in default, with the following results: (i) the sum advanced constitutes a pledge agreement loan from the Lending Member to the Defaulting Member and a UCC-1 financing statement. The Other Members shall advance the Non-Capital Contribution Loan directly of that sum to the Company on behalf by the Defaulting Member pursuant to the applicable provisions of this Agreement, (ii) the principal balance of the Non-Contributing loan and all accrued unpaid interest thereon is due and payable in whole on the tenth (10th) day after written demand therefor by the Lending Member to the Defaulting Member, (iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, which advance together with all interest accrued on it, is repaid to the Lending Member, (iv) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or after termination of the Company) instead shall be deemed paid to be the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal), (v) the payment of the loan and interest accrued on it is secured by a Capital Contribution by security interest in the Non-Contributing Defaulting Member. The foregoing remedies ’s Membership Interest, as more fully set forth in paragraph 15.02 of this Section 4.5A shall be Agreement, and (vi) the Lending Member has the right, in addition to the other rights and not remedies granted to it pursuant to this Agreement or available to it at law or in limitation equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Defaulting Member, (c) exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas; (d) reducing the Defaulting Member’s Membership Interest or other interest in the Company; (e) subordination of the Defaulting Member’s Membership Interest to the nondefaulting Member; (f) a forced sale of the Defaulting Member’s Membership Interest at Fair Value and upon the terms of purchase as provided in Article XIV; (g) forfeiture of the Defaulting Member’s Membership Interest; or (h) exercising any other rights and remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contributionat law or in equity.

FAILURE TO CONTRIBUTE. A. Should (i) 3.3.1 If any Developer fail Member fails to contribute timely its Development Stage Contributionall or any portion of any Capital Contribution required to be made by such Member pursuant to this Agreement and such failure continues for a period of five (5) Business Days after receipt by such Member (such Member being hereinafter referred to as a "Delinquent Member") of notice from the Managing Members specifying such failure (such failure being hereinafter referred to as a "Default"), then the Managing Members (or, in the event a Managing Member is the Delinquent Member, the other Managing Member or, in the event both Managing Members are the Delinquent Members, a Majority in Interest of the other Members) may, at their option, take one or (ii) any Member fail to contribute on more of the date requested by the Executive Committee either following actions: (a) its Additional Development Land Contribution pursuant Take such action (including, without limitation, the filing of a suit) as they deem appropriate to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), all, some or one of the other Members who are not themselves Defaulting Members (“Other Members”) shall be entitled to make non-recourse loans secured obtain payment by the Non-Contributing Member’s Interest in the Company (“Non-Contribution Loans”) to the Non-Contributing Delinquent Member in the amount of the cash that portion of its Capital Contribution which is in default, together with interest thereon at the Non-Contributing Member failed rate of interest equal to make. If more than one (1) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty five percent (205%) per annumannum plus the prime rate listed from time to time in The Wall Street Journal (which listing appears as of the date hereof under the caption "Money Rates") or, or (ii) if such listing is no longer published, then the reference rate of offered at such time by the Bank of America NT&SA, plus six measured from the date that such Capital Contribution was due until the date that such Capital Contribution, together with any costs and expenses incurred by the Company as a result of the Default, and together with all interest accrued thereon, is paid to the Company. Until all such amounts have been paid, all distributions that would otherwise be made to such Delinquent Member shall be withheld in partial satisfaction of such obligations and shall be first applied to any costs and expenses incurred by the Company as a result of the Default, then to interest earned and unpaid, and then to principal; (b) Advance on a pro rata basis based upon the relative Percentage Interests of the participating Members, that portion of such contribution which is in default, on the following terms: (A) the sums thus advanced shall be deemed to be demand recourse loans from the Members participating therein to the Delinquent Member and a Capital Contribution of such sums to the Company by the Delinquent Member; (B) such loans shall bear interest at the rate of interest equal to five percent (65%) per annumannum plus the prime rate listed from time to time in The Wall Street Journal (which listing appears as of the date hereof under the caption "Money Rates") or, in either caseif such listing is no longer published, compounded monthly. The Members acknowledge and agree then the reference rate offered at such time by the Bank of America NT&SA, measured from the date that the foregoing Default Interest Rate advance was made until the date that such advance, together with any costs and expenses incurred by the Company as a result of the Default, and together with all interest accrued thereon, is repaid to the Members; (C) unless otherwise paid, the repayment of these loans shall be made from any and all distributions of the Company otherwise to be made to the Delinquent Member, with the full amount of such loan (plus all accrued interest thereon) to be refunded in full before any distribution is made to the Delinquent Member during the term of the Company or upon dissolution; and (D) all such repayments shall be first applied to any costs and expenses incurred by the Company as a default rate result of interest. Accordinglythe Default, then to interest earned and unpaid, and then to principal; (c) Unless the Delinquent Member shall have theretofore cured its failure to make the required Capital Contribution (and reimbursed the Company for all costs and expenses incurred as a result of such Default), sell the Delinquent Member's interest in the Company to the other Members wishing to participate (other than the Delinquent Member) on a pro rata basis based upon the relative Percentage Interests of the other participating Members or to any other Person, to the extent the Default Interest Rate exceeds that which would otherwise Members fail to purchase their pro rata share, without further notice to the Delinquent Member on the terms and for such consideration as the contributing Member(s) may determine in its sole and absolute discretion. Proceeds from any such sale shall be permitted retained by law, such excess interest is intended the Company or the Members (as the case may be) to reflect a liquidated damages amount for the default extent of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonable. Notwithstanding anything herein to the contrary, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over to the Other Members who had made Non-Contribution Loans, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Memberamount, including all interest accrued thereoninterest, are repaid in full. Any such amounts shall be deemed to have been distributed to the Non-Contributing Member costs and applied by the Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, expenses (including, without limitation, any and all costs and expenses incurred as a pledge agreement and a UCC-1 financing statement. The Other Members shall advance result of the Non-Contribution Loan directly Default), then owing to the Company on behalf of or the Non-Contributing Member, which advance Members (as the case may be) (the Delinquent Member remaining liable for any deficiency); any excess shall be deemed paid to the Delinquent Member; and/or (d) Exercise such other rights and remedies to which the contributing Member(s) or the Company may be a Capital Contribution entitled at law or in equity or by the Non-Contributing Member. The foregoing remedies set forth in statute. 3.3.2 No right, power or remedy conferred pursuant to this Section 4.5A Paragraph 3.3 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to and not every other right, power or remedy whether conferred in limitation of the remedies this Paragraph 3.3 or now or hereafter available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the required cash Capital Contributionat law or in equity or by statute or otherwise.

FAILURE TO CONTRIBUTE. A. Should Upon the failure of a Member (i) any Developer fail to contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the date requested by the Executive Committee either (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“Non-Contributing Member”), allfor a period in excess of ten (10) days, some to make its share of any required capital contribution under Section 3.1 or one 3.2 (the portion thereof not contributed by or returned to such Non-Contributing Member being referred to herein as the “Deficiency”), then the other Member (the “Contributing Member”), if it has timely made its share of such capital contribution, may, in its sole and absolute discretion within ten (10) days after the expiration of the other Members who are not themselves Defaulting Members foregoing ten (“Other Members”10) day period, (1) withdraw its share of such contribution, in which event such Subsequent Contribution shall be entitled deemed cancelled but the Non-Contributing Member shall not be released of its liability for damages resulting from its failure to make noncontribute its share of the same, (2) loan to the Non-recourse loans secured Contributing Member such Deficiency by depositing the same into the Operating Accounts, or (3) contribute to the Company such Deficiency by depositing the same into the Operating Accounts, which contribution shall reduce the Non-Contributing Member’s Interest in Company Percentage pursuant to subsection D below. If the Contributing Member fails, within such ten (10) day period, to deposit the Deficiency into the Operating Accounts, then it shall be deemed to have elected to proceed under clause (1) above and the Company shall promptly return to the Contributing Member its share of such contribution. B. If the Contributing Member proceeds under clause (“Non-Contribution Loans”2) to of subsection A above, then the Non-Contributing Member in shall be deemed to have contributed the amount of Deficiency and the cash Capital Contribution loan (which the Non-Contributing Member failed to make. If more than one (1shall be called a “Default Loan”) Other Member elects to make a Non-Contribution Loan to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Applicable Rate”): ” (iwhich, as used herein, means, from time to time, the lesser of (A) twenty percent (20%) % per annum, compounded annually, or (iiB) 10% per annum in excess of the reference prime rate of Bank of America NT&SAinterest publicly announced by Citibank, plus six percent (6%) N.A, compounded annually, but not less than 15% per annum, in either casecompounded annually, compounded monthly. The Members acknowledge but not more than the maximum amount allowable under applicable law), and agree that shall be due and payable ten (10) days after the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member and not a penalty. Instead, such excess interest constitutes a good faith estimate by the Members to estimate the actual damages resulting from the Non-Contributing Member’s default. The Members agree that such estimate is reasonabledate made. Notwithstanding anything herein to the contraryprovisions of Section 4.1, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v), 6 and 14.3, below shall be paid over instead to the Other Members who had made Non-Contribution Loans, in proportion to Contributing Member that makes such Default Loan until the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including Default Loan (and all interest accrued thereon, are repaid ) has been paid in full. Any such amounts payments and distributions shall be deemed to have been distributed to the Non-Contributing Member and then turned over in payment of such Default Loan. All payments shall be applied first to interest and then to principal. C. If a Default Loan (including all interest thereon) to ESC is not fully paid when due (i.e., within ten (10) days), then an event shall be deemed to have occurred under Section 7.2A(2) entitling BREA to deliver a “Termination Notice” (as hereinafter defined). Notwithstanding the foregoing, BREA shall not be permitted to deliver a Termination Notice with respect to a Default Loan that results from a Contribution Request made upon BREA’s decision pursuant to its rights under 0, unless such Contribution Request is made in connection with an emergency or for necessary capital contributions (e.g., to meet the requirements of any Project Financing, to pay any applicable taxes, to prevent physical waste to any Property). D. If the Contributing Member proceeds under clause (3) of subsection A above, then the Company Percentages of the Members shall be recalculated and reset as of such time based upon the ratio of all contributions made by a Member (irrespective of any contributions that may have been previously returned to a Member) to all contributions made by all of the Members (irrespective of any contributions that may have been previously returned to a Member). Notwithstanding the foregoing, however, any capital contributions which are made by ESC pursuant to Section 3.5 and are attributable to distributions under the “Promote Clauses” (as hereinafter defined) shall not be considered as capital contributions for purposes of the foregoing calculation. To the extent that the Company Percentage of ESC is reduced under this subsection D, the percentages set forth in clause (2) of Section 4.1B, clause (2) of Section 4.1C and clause (2) of Section 4.1D shall be reduced in the same proportion (as the proportionate reduction in ESC’s Company Percentage) and the corresponding percentages in clause (1) of Section 4.1B, clause (1) of Section 4.1C and clause (1) of Section 4.1D shall be increased accordingly. E. The rights of the Company and its Members pursuant to this Section 3.3 are not exclusive and shall not be deemed to waive any other right or remedy of the Company or any Member under this Agreement, at law or in equity, against any Non-Contributing Member to repay the Non-Contribution Loan(s). Further, the Non-Contributing Member’s Interest shall be deemed pledged to the Other Members as security for repayment of their Non-Contribution Loans. The Non-Contributing Member shall execute and deliver to the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, a pledge agreement and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to the Company on behalf of the Non-Contributing Member, which advance shall be deemed to be a Capital Contribution by the Non-Contributing Member. The foregoing remedies set forth in this Section 4.5A shall be in addition to and not in limitation of the remedies available to the Other Members under this Agreement for the Non-Contributing Member’s failure to make the any required cash Capital Contributioncapital contribution.

FAILURE TO CONTRIBUTE. A. Should If either DEI or Radian (i) any Developer fail to contribute timely its Development Stage Contributionin either such case, or (ii) any Member fail to contribute on the date requested by the Executive Committee either (a) its Additional Development Land Contribution pursuant to Section 4.3, above, or (b) its Shortfall Contribution pursuant to Section 4.4, above (“"Non-Contributing Member”") (x) fails (including a failure because of legal requirements as permitted by Section 3.5(g)), allin whole or in part, some to make any cash contribution, to guarantee the Credit Facility or one to make Ordinary Loans or (y) defaults, in whole or in part, on any other obligation to pay money under this Agreement within five (5) business days of giving of notice by the other Members who are not themselves Defaulting Members Member to the Non- Contributing Member that such cash contribution, guarantee or Ordinary Loan is due or that the Non-Contributing Member has defaulted in any other such obligation under this Agreement, DEI (“Other Members”with respect to circumstances in which Radian is the Non- Contributing Member) shall be entitled or Radian (with respect to make non-recourse loans secured by circumstances in which DEI is the Non-Contributing Member’s Interest ), as the case may be (in either such case, the "Contributing Member"), shall have the right to: (i) advance directly to the Company such additional cash contribution or provide such guarantee or Ordinary Loan, or portion thereof, or such other payment of money, or portion thereof, as the Non-Contributing Member has failed to make or defaulted on (the "Non-Contributing Member's Share"), and such advance, together with a proportionate amount of the corresponding cash contribution or other payment, if any, made by such Contributing Member, shall be deemed a loan by the Contributing Member to the Company (“Non-Contribution Loans”a "Member Loan"). A Member Loan shall bear interest at the rate equal to the lower of: (A) the maximum rate allowed by law; or (B) four (4) percentage points over the Prime Rate. A Member Loan shall be recouped and repaid from all funds which would have been available to make distributions which the Members would otherwise be entitled to receive from the Company but for this Section 3.6, all of which shall instead be paid by the Company to the Contributing Member and applied to the payment of the Member Loan and all interest thereon, until the same shall have been paid in full. It is understood, however, that to the extent the principal and interest of a Member Loan are not repaid in full by the Company from all funds which would otherwise have been available to make distributions (including any distributions pursuant to Section 9.6(b)) to the Members, the Non- Contributing Member shall be obligated to repay an amount equal to the Non-Contributing Member in the amount Member's Share of the cash Capital Contribution outstanding balance of the principal and interest of such Member Loan upon commencement of the winding up of the Company in accordance with Section 9.2. Any amount which the Non-Contributing Member failed to make. If more than one (1) Other Member elects would otherwise have been available to make a Non-Contribution distributions from the Company that is applied to any Member Loan shall be credited first to any interest then due on such Member Loan, and the balance of the distribution shall be credited against the outstanding principal balance of such Member Loan; or (ii) upon notice to the Non-Contributing Member, then such Other Members shall make the Non-Contribution Loans pro rata in accordance with their relative Percentage Interests. The Non-Contribution Loan shall bear interest at a default interest rate which is the greater of the following (the “Default Interest Rate”): (i) twenty percent (20%) per annumpurchase all, or (ii) the reference rate of Bank of America NT&SAbut not less than all, plus six percent (6%) per annum, in either case, compounded monthly. The Members acknowledge and agree that the foregoing Default Interest Rate is a default rate of interest. Accordingly, to the extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such excess interest is intended to reflect a liquidated damages amount for the default of the Non-Contributing Member Member's Company Interest, (A) if on or prior to December 31, 1998, at the price equal to the amount set forth in Section 8.3 of this Agreement as if Radian had exercised its option to sell; provided, however, that such price shall be discounted at a rate of 10% per year or portion thereof if such purchase shall occur prior to December 31, 1997, and not a penalty(B) thereafter, at the fair market value therefor. InsteadNotwithstanding the foregoing, if the enforceability of such excess interest constitutes a good faith estimate by the Members Contributing Member's right to estimate the actual damages resulting from purchase the Non-Contributing Member’s default. The Members agree that such estimate 's Company Interest as set forth in this subsection (ii) is reasonable. Notwithstanding anything herein to the contraryin any way limited by general equitable principles, all distributions which would otherwise be made to the Non-Contributing Member under Sections 4.3A(1)(b)(v)Bankruptcy, 6 and 14.3moratorium, below shall be paid over to the Other Members who had made Non-Contribution Loansor other laws affecting creditors' rights generally then, in proportion to the outstanding balance(s) of the Non-Contribution Loan(s) made by such Other Members, until their Non-Contribution Loans to the Non-Contributing Member, including all interest accrued thereon, are repaid in full. Any such amounts shall be deemed to have been distributed upon notice to the Non-Contributing Member and applied by the Non-Company, the Contributing Member or any of its Affiliates shall have the right to repay purchase all, but not less than all of the Non-Contribution Loan(s)assets and liabilities of the Company at the fair market value therefor. FurtherIn either case, if DEI and Radian cannot agree upon such fair market value within sixty (60) days after the notice to purchase the Non-Contributing Member’s 's Interest shall be deemed pledged or all the assets and liabilities of the Company, as the case may be, is delivered, either DEI or Radian may, by notice to the Other Members as security for repayment of their Non-Contribution Loansother, invoke the Appraisal Procedure. The Non-Contributing Member shall execute and deliver If the Appraisal Procedure is required to determine the Other Members such agreements and instruments requested by any of the Other Members to evidence and perfect the Other Members’ security interest in the Non-Contributing Member’s Interest to secure such Non-Contribution Loan, including, without limitation, a pledge agreement and a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to the Company on behalf fair market value of the Non-Contributing Member's Interest or all the assets and liabilities of the Company, which advance as the case may be, the fees and expenses of such Appraisal Procedure shall be deemed to be a Capital Contribution paid by the Non-Contributing Member. The foregoing remedies closing of either such sale shall take place upon the date that is within thirty (30) days after such fair market value is determined in accordance with this Section 3.6 and all legal requirements relating to such sale have been satisfied; provided, however, that if such sale is not in compliance with any such legal requirements, then DEI and Radian shall equitably adjust the arrangements set forth in this Section 4.5A 3.6(ii) in light of what is legally possible and in compliance with any such legal requirements in order to effectuate the intent of the parties. Notwithstanding the foregoing, if the Non-Contributing Member fails, in whole or in part, to make any cash contribution, to guarantee the Credit Facility or to make Ordinary Loans because of legal requirements as permitted by Section 3.5(g), then the Contributing Member shall only have the rights set forth in subsection (i) above; provided, however, that any Member Loan caused by legal requirements as permitted by Section 3.5(g) shall bear interest equal to the interest rate paid on an Ordinary Loan. Except as set forth above, the exercise of the right to make a Member Loan or purchase the Non-Contributing Member's Company Interest shall be in addition to and not in limitation of any other rights or remedies that the remedies available to the Other Members Contributing Member may have under this Agreement for or at law or in equity arising from the Non-Contributing Member’s 's (i) failure to make the required cash Capital Contributioncontribution, (ii) failure to provide its portion of the required guarantee, (iii) failure to make its required loan or (iv) default in any other obligation to pay money.