Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. A. Upon the failure of a Member (the “Non-Contributing Member”), for a period in excess of ten (10) days, to make its share of any required capital contribution under Section 3.1 or 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 foregoing ten (10) day period, (1) withdraw its share of such contribution, in which event such Subsequent Contribution shall be deemed cancelled but the Non-Contributing Member shall not be released of its liability for damages resulting from its failure to contribute its share of the same, (2) loan to the Non-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 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 (2) of subsection A above, then the Non-Contributing Member shall be deemed to have contributed the Deficiency and the loan (which shall be called a “Default Loan”) shall bear interest at the “Applicable Rate” (which, as used herein, means, from time to time, the lesser of (A) 20% per annum, compounded annually, or (B) 10% per annum in excess of the prime rate of interest publicly announced by Citibank, N.A, compounded annually, but not less than 15% per annum, compounded annually, but not more than the maximum amount allowable under applicable law), and shall be due and payable ten (10) days after the date made. Notwithstanding the provisions of Section 4.1, all distributions which would otherwise be made to the Non-Contributing Member shall be paid instead to the Contributing Member that makes such Default Loan until the Default Loan (and all interest thereon) has been paid in full. Any such 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 for failure to make any required capital contribution.

FAILURE TO CONTRIBUTE. A. Upon Should (i) any Developer fail to contribute timely its Development Stage Contribution, or (ii) any Member fail to contribute on the failure of a Member date requested by the Executive Committee either (the 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”), for a period in excess all, some or one of ten the other Members who are not themselves Defaulting Members (10“Other Members”) days, shall be entitled to make its share of any required capital contribution under Section 3.1 or 3.2 (the portion thereof not contributed non-recourse loans secured 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 foregoing ten (10) day period, (1) withdraw its share of such contribution, in which event such Subsequent Contribution shall be deemed cancelled but the Non-Contributing Member shall not be released of its liability for damages resulting from its failure to contribute its share of Member’s Interest in the same, Company (2“Non-Contribution Loans”) loan 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 Deficiency by depositing Other Members shall make the same into 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 Operating Accountsgreater of the following (the “Default Interest Rate”): (i) twenty percent (20%) per annum, or (3ii) contribute 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 Company extent the Default Interest Rate exceeds that which would otherwise be permitted by law, such Deficiency 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 depositing the same into Members to estimate the Operating Accounts, which contribution shall reduce actual damages resulting from the Non-Contributing Member’s Company Percentage pursuant to subsection D belowdefault. If the Contributing Member fails, within The Members agree that 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 estimate is reasonable. Notwithstanding anything herein to the Contributing Member its share of such contribution. B. If the Contributing Member proceeds under clause (2) of subsection A above, then the Non-Contributing Member shall be deemed to have contributed the Deficiency and the loan (which shall be called a “Default Loan”) shall bear interest at the “Applicable Rate” (which, as used herein, means, from time to time, the lesser of (A) 20% per annum, compounded annually, or (B) 10% per annum in excess of the prime rate of interest publicly announced by Citibank, N.A, compounded annually, but not less than 15% per annum, compounded annually, but not more than the maximum amount allowable under applicable law), and shall be due and payable ten (10) days after the date made. Notwithstanding the provisions of Section 4.1contrary, 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 instead 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 that makes such Default Loan until the Default Loan (and Member, including all interest accrued thereon) has been paid , are repaid in full. Any such payments and distributions amounts shall be deemed to have been distributed to the Non-Contributing Member and then turned over in payment of such Default Loanapplied by the Non-Contributing Member to repay the Non-Contribution Loan(s). All payments Further, the Non-Contributing Member’s Interest shall be applied first 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 then a UCC-1 financing statement. The Other Members shall advance the Non-Contribution Loan directly to principal. C. If a Default Loan (including all interest thereon) to ESC is not fully paid when due (i.e.the Company on behalf of the Non-Contributing Member, within ten (10) days), then an event which advance shall be deemed to have occurred under Section 7.2A(2) entitling BREA to deliver be a “Termination Notice” (as hereinafter defined)Capital Contribution by the Non-Contributing Member. 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 The foregoing calculation. To the extent that the Company Percentage of ESC is reduced under this subsection D, the percentages remedies set forth in clause (2) of this Section 4.1B, clause (2) of Section 4.1C and clause (2) of Section 4.1D 4.5A shall be reduced in the same proportion (as the proportionate reduction addition to and not 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 limitation of the Company and its remedies available to the Other 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 Agreement for the Non-Contributing Member for Member’s failure to make any the required capital contributioncash Capital Contribution.

FAILURE TO CONTRIBUTE. A. Upon If either DEI or Radian (in either such case, the failure of a Member (the “"Non-Contributing Member”") (x) fails (including a failure because of legal requirements as permitted by Section 3.5(g)), for a period in excess of ten (10) dayswhole or in part, to make its share any cash contribution, to guarantee the Credit Facility or 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 any required capital contribution under Section 3.1 or 3.2 (the portion thereof not contributed giving of notice by or returned to such Non-Contributing Member being referred to herein as the “Deficiency”), then the other Member (to the “Non- Contributing Member”), if it has timely made its share of Member that such capital cash contribution, may, in its sole and absolute discretion within ten (10) days after the expiration of the foregoing ten (10) day period, (1) withdraw its share of such contribution, in which event such Subsequent Contribution shall be deemed cancelled but guarantee or Ordinary Loan is due or that the Non-Contributing Member has defaulted in any other such obligation under this Agreement, DEI (with respect to circumstances in which Radian is the Non- Contributing Member) or Radian (with respect to circumstances in which DEI is the Non-Contributing Member), as the case may be (in either such case, the "Contributing Member"), shall not be released 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 its liability for damages resulting from its failure money, or portion thereof, as the Non-Contributing Member has failed to contribute its share make or defaulted on (the "Non-Contributing Member's Share"), and such advance, together with a proportionate amount of the samecorresponding cash contribution or other payment, if any, made by such Contributing Member, shall be deemed a loan by the Contributing Member to the Company (2a "Member Loan"). A Member Loan shall bear interest at the rate equal to the lower of: (A) loan 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's Share of the outstanding balance of the principal and interest of such Member such Deficiency by depositing Loan upon commencement of the same into the Operating Accounts, or (3) contribute to winding up of the Company in accordance with Section 9.2. Any amount which would otherwise have been available to make distributions from the Company that is applied to any Member Loan shall be credited first to any interest then due on such Deficiency by depositing Member Loan, and the same into balance of the Operating Accounts, which contribution distribution shall reduce be credited against the outstanding principal balance of such Member Loan; or (ii) upon notice to the Non-Contributing Member’s 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 (2) of subsection A above, then the Non-Contributing Member shall be deemed to have contributed the Deficiency and the loan (which shall be called a “Default Loan”) shall bear interest at the “Applicable Rate” (which, as used herein, means, from time to time, the lesser of (A) 20% per annum, compounded annually, or (B) 10% per annum in excess of the prime rate of interest publicly announced by Citibank, N.A, compounded annuallypurchase all, but not less than 15% per annumall, compounded annually, but not more than the maximum amount allowable under applicable law), and shall be due and payable ten (10) days after the date made. Notwithstanding the provisions of Section 4.1, all distributions which would otherwise be made to 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 paid instead discounted at a rate of 10% per year or portion thereof if such purchase shall occur prior to December 31, 1997, and (B) thereafter, at the fair market value therefor. Notwithstanding the foregoing, if the enforceability of such Contributing Member that makes such Default Loan until Member's right to purchase the Default Loan Non-Contributing Member's Company Interest as set forth in this subsection (and all interest thereonii) has been paid is in full. Any such payments and distributions shall be deemed to have been distributed any way limited by general equitable principles, Bankruptcy, moratorium, or other laws affecting creditors' rights generally then, upon notice to the Non-Contributing Member and then turned over in payment the Company, the Contributing Member or any of its Affiliates shall have the right to purchase all, but not less than all of the assets and liabilities of the Company at the fair market value therefor. In 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 Interest 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, invoke the Appraisal Procedure. If the Appraisal Procedure is required to determine the fair market value of the Non-Contributing Member's Interest or all the assets and liabilities of the Company, as the case may be, the fees and expenses of such Default Loan. All payments Appraisal Procedure shall be applied first paid by the Non-Contributing Member. The 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 interest and then to principal. C. If a Default Loan (including all interest thereon) to ESC such sale have been satisfied; provided, however, that if such sale is not fully paid when due (i.e., within ten (10) days)in compliance with any such legal requirements, then an event DEI and Radian shall be deemed equitably adjust the arrangements set forth in this Section 3.6(ii) in light of what is legally possible and in compliance with any such legal requirements in order to have occurred under Section 7.2A(2) entitling BREA to deliver a “Termination Notice” (as hereinafter defined)effectuate the intent of the parties. 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 0if the Non-Contributing Member fails, unless such Contribution Request is made in connection with an emergency whole or for necessary capital contributions (e.g.in part, to meet the requirements of make any Project Financingcash contribution, to pay any applicable taxesguarantee the Credit Facility or to make Ordinary Loans because of legal requirements as permitted by Section 3.5(g), to prevent physical waste to any Property). D. If then the Contributing Member proceeds under clause shall only have the rights set forth in subsection (3i) 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; provided, however, that any capital contributions which are made Member Loan caused by ESC pursuant to legal requirements as permitted by Section 3.5 and are attributable to distributions under the “Promote Clauses” (as hereinafter defined3.5(g) shall not be considered bear interest equal to the interest rate paid on an Ordinary Loan. Except as capital contributions for purposes set forth above, the exercise of the foregoing calculation. To right to make a Member Loan or purchase the extent Non-Contributing Member's Company Interest shall be in addition to any other rights or remedies that the Company Percentage of ESC is reduced Contributing Member may have 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 Agreement or remedy of the Company or any Member under this Agreement, at law or in equity, against any equity arising from the Non-Contributing Member for Member's (i) failure to make the required cash contribution, (ii) failure to provide its portion of the required guarantee, (iii) failure to make its required loan or (iv) default in any required capital contributionother obligation to pay money.

FAILURE TO CONTRIBUTE. A. Upon the 3.3.1 If any Member fails to contribute timely all or any portion of any Capital Contribution required to be made by such Member pursuant to this Agreement and such failure of a Member (the “Non-Contributing Member”), continues for a period in excess of ten five (105) days, to make its share of any required capital contribution under Section 3.1 or 3.2 Business Days after receipt by such Member (the portion thereof not contributed by or returned to such Non-Contributing Member being hereinafter referred to herein as a "Delinquent Member") of notice from the “Deficiency”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 more of the following actions: (a) Take such action (including, without limitation, the “Contributing filing of a suit) as they deem appropriate to obtain payment by the Delinquent Member of that portion of its Capital Contribution which is in default, together with interest thereon at the rate of interest equal to five percent (5%) per annum 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, if such listing is no longer published, then the reference rate offered at such time by the Bank of America NT&SA, 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 (5%) per annum 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, if such listing is no longer published, then the reference rate offered at such time by the Bank of America NT&SA, measured from the date that the 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 result of the 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), if it has timely made its share 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 Members fail to purchase their pro rata share, without further notice to the Delinquent Member on the terms and for such capital contribution, may, consideration as the contributing Member(s) may determine in its sole and absolute discretion within ten discretion. Proceeds from any such sale shall be retained by the Company or the Members (10as the case may be) days after to the expiration extent of the foregoing ten amount, including interest, costs and expenses (10) day periodincluding, (1) withdraw its share of such contributionwithout limitation, in which event such Subsequent Contribution shall be deemed cancelled but the Non-Contributing Member shall not be released of its liability for damages resulting from its failure to contribute its share any and all costs and expenses incurred as a result of the sameDefault), (2) loan to the Non-Contributing Member such Deficiency by depositing the same into the Operating Accounts, or (3) contribute then owing to the Company such Deficiency by depositing or the same into Members (as the Operating Accounts, which contribution shall reduce case may be) (the Non-Contributing Member’s Company Percentage pursuant to subsection D below. If the Contributing Delinquent 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 (2) of subsection A above, then the Non-Contributing Member shall be deemed to have contributed the Deficiency and the loan (which shall be called a “Default Loan”) shall bear interest at the “Applicable Rate” (which, as used herein, means, from time to time, the lesser of (A) 20% per annum, compounded annually, or (B) 10% per annum in remaining liable for any deficiency); any excess of the prime rate of interest publicly announced by Citibank, N.A, compounded annually, but not less than 15% per annum, compounded annually, but not more than the maximum amount allowable under applicable law), and shall be due and payable ten (10) days after the date made. Notwithstanding the provisions of Section 4.1, all distributions which would otherwise be made to the Non-Contributing Member shall be paid instead to the Contributing Member that makes Delinquent Member; and/or (d) Exercise such Default Loan until other rights and remedies to which the Default Loan (and all interest thereoncontributing Member(s) has been paid in full. Any such 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 may 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, entitled at law or in equityequity or by statute. 3.3.2 No right, against any Non-Contributing Member for failure power or remedy conferred pursuant to make any required capital contributionthis Paragraph 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 Paragraph 3.3 or now or hereafter available at law or in equity or by statute or otherwise.

FAILURE TO CONTRIBUTE. A. Upon If either Member fails to contribute by --------------------- the failure Contribution Date its share of a the Additional Capital Contribution so called for (said Member (being the “"Non-Contributing Member”"), for a period in excess of ten (10) daysthe other Member, to make so long as it has contributed its share of any required capital contribution under Section 3.1 or 3.2 the Additional Capital Contribution so called for (the portion thereof not contributed by or returned to such Non-"Contributing Member being referred to herein as the “Deficiency”Member"), then may advance the other Member (the “Contributing Member”), if it has timely made its share amount of such capital contribution, may, in its sole and absolute discretion within ten (10) days after the expiration of the foregoing ten (10) day period, (1) withdraw its share of such contribution, in which event such Subsequent Contribution shall be deemed cancelled but the Non-Contributing Member shall not be released of its liability for damages resulting from its failure to contribute its Member's share of the sameAdditional Capital Contribution to the Company, in which event: (2i) The amount so advanced shall constitute a loan (each a "Contribution Loan") to the Non-Contributing Member in the amount advanced (any Member who makes such Deficiency by depositing the same into the Operating Accounts, or (3) contribute to the Company a Contribution Loan being a "Contribution Loan Member"). Each such Deficiency by depositing the same into the Operating Accounts, which contribution shall reduce the Non-Contributing Member’s 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 (2) of subsection A above, then the Non-Contributing Member shall be deemed to have contributed the Deficiency and the loan (which shall be called a “Default Loan”) Contribution Loan shall bear interest at a rate equal to the “Applicable Rate” Base Rate plus five percent (which, as used herein, means, from time to time, the lesser of (A) 20% per annum5%), compounded annuallymonthly (but such rate shall not, or (B) 10% per annum in excess of the prime rate of interest publicly announced by Citibankany event, N.A, compounded annually, but not less than 15% per annum, compounded annually, but not more than exceed the maximum amount allowable under applicable rate permitted by law), and shall be due 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 payable ten 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) below, 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. (10ii) If the Non-Contributing Member has not repaid 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 Contribution Loan was made. Notwithstanding , then, within forty-five (45) days following the provisions expiration of Section 4.1such sixty (60)-day period, all distributions which would otherwise be made the Contribution Loan Member may give written notice to the Non-Contributing Member of its intention to avail itself of the remedy described in this Section 6.2(b)(ii). If the Non- Contributing Member repays the Contribution Loan, with interest as described in Section 6.2(b)(i) hereof, within thirty (30) days following receipt of the notice referred to in the preceding sentence, it shall be paid instead restored to its full rights and authorities hereunder as if it had timely responded to the call for an Additional Capital Contribution. If the Non- Contributing Member does not do so, however, the advance by the Contributing Member that makes such Default Loan until the Default Loan (and all interest thereon) has been paid in full. Any such payments and distributions shall be deemed to have been distributed to on behalf of the Non-Contributing Member and then turned over in payment of such Default Loan. All payments (without interest), together with the Contributing Member's own Additional Capital Contribution, shall be applied first credited to interest the Contributions Account of the Contributing Member, and the Sharing Ratios of each Member shall then to principal. C. If a Default Loan (including all interest thereon) to ESC is not fully paid when due (i.e.be recalculated, within ten (10) days)by establishing fractions, then an event the numerators of which shall be deemed to have occurred under Section 7.2A(2) entitling BREA to deliver a “Termination Notice” 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 (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 after crediting all amounts paid by 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 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 not 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 waive any other right or remedy of the Company or any Member under this Agreement, at law or in equity, against any repay a Contribution Loan to a Non-Contributing Member for failure to make any required capital contributionMember. Exhibit "B" ----------- attached hereto and by this reference made a part hereof sets forth an example of the calculation of such decrease and increase in Sharing Ratios.