Common use of Noncontributing Partners Clause in Contracts

Noncontributing Partners. (a) The Partnership shall be entitled to enforce the obligations of each Limited Partner to make the contributions to capital (including any obligations to return distributions) set forth in this Agreement, and the Partnership shall have all remedies available at law or in equity in the event any such contribution is not so made. If any legal proceedings relating to the failure of a Limited Partner to make such a contribution are commenced, such Limited Partner shall pay all costs and expenses incurred by the Partnership, including reasonable attorneys’ fees, in connection with such proceedings. (b) Additionally, without in any way limiting any remedy which the Partnership may pursue pursuant to paragraph 4.4(a), should any Limited Partner fail to make any of the capital contributions or fulfill any of the distribution-return obligations required of it under this Agreement and such failure shall have continued uncured for ten (10) or more business days after delivery of written notice by the General Partner to such Limited Partner, such Limited Partner shall be in default (a “Defaulting Limited Partner”). In the event of such default, the General Partner may, in carrying out what it determines to be in the best interests of the nondefaulting Limited Partners, elect to enforce one or more of the provisions of this paragraph 4.4(b) in connection with such a default, to which each Limited Partner hereby expressly consents. The General Partner shall deliver written notice to such Defaulting Limited Partner if it determines to utilize one or more of the powers set forth in paragraph 4.4(a) or this paragraph 4.4(b) (a “Default Notice”). Upon delivery of the Default Notice, the Defaulting Limited Partner shall not be permitted to participate in any vote or consent of the Partners required under this Agreement or permitted under the Act (and the Capital Commitment of such Defaulting Limited Partner shall be disregarded for purposes of calculating a Majority in Interest or other Percentage in Interest of the Limited Partners for purposes of this Agreement), and the Defaulting Limited Partner may not make any additional contributions of capital against such Defaulting Limited Partner’s Capital Commitment (other than to fund management fees and other expenses of the Partnership) without the written consent of the General Partner, which consent may be granted or denied in the sole discretion of the General Partner. (i) The General Partner may waive, without the consent of any other Partner, in whole or in part, the requirement of payment with respect to any due and unpaid capital contributions by a Defaulting Limited Partner pursuant to this Agreement and reduce such Defaulting Limited Partner’s Capital Commitment accordingly. (ii) The General Partner may extend the time of payment for a Defaulting Limited Partner of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement. (iii) The General Partner may declare the entire amount of a Defaulting Limited Partner’s then unfunded Capital Commitment to be immediately due and payable. (iv) On behalf of the Partnership, the General Partner may enforce, by appropriate legal proceedings, the Defaulting Limited Partner’s obligation to make payment on the amount of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement or to pay the entire amount of such Defaulting Limited Partner’s then unfunded Capital Commitment. (v) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(v), such Defaulting Limited Partner shall pay all expenses to be incurred or anticipated to be incurred by the Partnership in connection with the default and the interest on the amount of the contribution to the Partnership then due at the Prime Rate as of the date the contribution to the Partnership was required to be made pursuant to this Agreement plus two hundred (200) basis points per annum (or if less, the highest rate permitted by applicable law), such interest to accrue from the date the contribution to the Partnership was required to be made pursuant to this Agreement until the date the contribution is made by such Defaulting Limited Partner, unless such payment is waived by the General Partner (which waiver may be made without the consent of any other Partner). The accrued interest shall be paid by the Defaulting Limited Partner to the Partnership upon payment of such contribution. The accrued interest so paid shall not be treated as an additional contribution to the capital of the Partnership, but shall be deemed to be income to the Partnership; provided that such income shall not be allocated to the Capital Account of the Defaulting Limited Partner. Until such time as the unpaid contribution and accrued interest thereon shall have been paid by the Defaulting Limited Partner, the General Partner may elect to withhold any or all distributions to be made to such Defaulting Limited Partner pursuant to Article 7 or Article 10 and recover any such unpaid contribution and accrued interest thereon by set off against any such distribution withheld. (vi) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(vi), the General Partner and the nondefaulting Limited Partners (the “Optionees”), shall have the right and the option, but not the obligation, to acquire the Partnership interest of the Defaulting Limited Partner (the “Optionor”), as follows: (1) The General Partner shall notify the Optionees of the default within twenty (20) days after it gives the Default Notice to the Defaulting Limited Partner. Such notice shall advise each Optionee of the portion and the price of the Optionor’s interest available to it. Each Optionee shall be offered a pro rata portion (in accordance with capital contributions to the Partnership) of the available Optionor’s interest. The aggregate price for the Optionor’s interest shall be the lesser of fifty percent (50%) of (A) the amount of the Optionor’s Capital Account calculated as of the due date of the additional contribution and adjusted to reflect the allocation of the appropriate proportion of the Partnership’s unrealized gains and losses as of the due date of such defaulted contribution, and (B) the aggregate amount of the Optionor’s capital contributions actually made less any distributions (valued at their fair market value on the date of distribution in accordance with paragraph 12.1) on or prior to such due date. The price for each Optionee shall be prorated according to the portion of the Optionor’s interest purchased by each such Optionee. The option granted hereunder shall be exercisable at any time within thirty (30) days following the date that the General Partner notifies the Optionees of the default by delivery to the General Partner of a notice of exercise of option together with a nonrecourse promissory note for the purchase price and a security agreement in accordance with subparagraph (5) below, which notice and documents the General Partner shall promptly forward to the Optionor. (2) Should any Optionee not exercise its option within said thirty (30) day period provided in subparagraph (1) above, the General Partner shall immediately notify the other Optionees who have elected to exercise their option, which Optionees shall have the right and option ratably among them to acquire the portion of the Optionor’s interest not so acquired (the “Remaining Portion”) within thirty (30) days of the date of the notice specified in this subparagraph (2) on the same terms as provided in subparagraph (1) above. (3) Any amount of the Remaining Portion not acquired by the Optionees pursuant to subparagraph (2) above may be acquired by the General Partner within thirty (30) days of the expiration of the thirty (30) day period specified in subparagraph (2) above on the same terms as set forth in subparagraph (1) above. (4) Any amount of the Remaining Portion not acquired by the Optionees and the General Partner pursuant to subparagraphs (2) or (3) above may, if the General Partner deems it in the best interest of the Partnership, be sold by the General Partner to any other investor, on terms not more favorable to such other investor than those applicable to the Optionees’ option, and upon the consent of the General Partner, any such third party purchaser may become a Limited Partner to the extent of the interest purchased hereunder. (5) The price due from each of the General Partner and the Optionees (and, if applicable, any third party purchaser pursuant to subparagraph (4) above) shall be payable by a noninterest bearing, nonrecourse promissory note (in such form as the General Partner shall designate) due upon final liquidation of the Partnership. Each such note shall be secured by the portion of the Optionor’s Partnership interest so purchased by its maker pursuant to a security agreement in a form designated by the General Partner and shall be enforceable by the Optionor only against such security. (6) Upon exercise of any option hereunder, each Optionee and the General Partner (and, if applicable, any third party purchaser pursuant to subparagraph (4) above) shall be obligated (A) to contribute to the Partnership that portion of the additional capital then due from the Optionor equal to the percentage of the Optionor’s interest purchased by such person and (B) to pay the same percentage of any further contributions otherwise due from such Optionor on the date such contributions are otherwise due. Each person who purchases a portion of the Optionor’s Partnership interest shall be deemed to have acquired such portion as of the due date of the additional capital contribution with respect to which the Optionor defaulted, and any distributions made after the due date on account of the Optionor’s interest shall be distributed among such purchasers (and, unless the entire interest was purchased, the Optionor) in accordance with their ultimate respective interests in the Optionor’s interest. Distributions otherwise allocable to the Optionor under the preceding sentence shall first be used to offset any defaulted contribution of the Optionor still due to the Partnership. Upon completion of any transaction hereunder, the General Partner shall cause Exhibit A to be amended to reflect all necessary changes resulting therefrom including, without limitation, admission of a purchaser as a Limited Partner, and adjustment of Capital Account balances, Capital Commitment amounts and Partnership Percentages as of the date of Optionor’s default to reflect the acquisition from Optionor of the appropriate pro rata portion of each such item. The purchase and transfer of the Partnership interest of the Optionor shall occur automatically upon exercise by any Optionee or the General Partner of its option hereunder (or acquisition by a third party purchaser of an interest pursuant to subparagraph (4) above), without any action by Optionor. (7) Notwithstanding the sale of any portion of an Optionor’s interest pursuant to this paragraph 4.4(b)(vi), such Optionor shall not be released from its unfunded Capital Commitment except as actually funded by the acquirer of any such portion of Optionor’s interest. (8) In the event that any amount of the Remaining Portion is not acquired by the Optionees, the General Partner and any third party purchasers pursuant to paragraphs 4.4(b)(vi)(1)-(4), then, in its sole discretion, the General Partner may apply any of the remedies described in paragraph 4.4(a) and this subparagraph 4.4(b) to such unsold portion. (vii) The General Partner may, in its sole discretion, elect to remove such Defaulting Limited Partner from the Partnership, in which such event (1) fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be forfeited and reallocated to the Capital Accounts of the nondefaulting Partners proportionally, based on, with respect to each such Partner, the ratio that its Partnership Percentage immediately prior to such calculation bears to the aggregate Partnership Percentages of all Partners (other than the Defaulting Limited Partner), (2) the remaining fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be payable to the Defaulting Limited Partner by the Partnership in installments over a period of no more than three (3) years from the effective date of the removal of such Defaulting Limited Partner pursuant to this paragraph 4.4(b)(vii), and (3) the Defaulting Limited Partner’s Partnership Percentage shall be reduced to zero. (viii) Notwithstanding anything to the contrary in this Agreement, each Limited Partner (1) agrees that it will execute any instruments or perform any other acts that are or may be necessary to effectuate and carry out the transactions contemplated by this paragraph 4.4, and (2) designates and appoints the General Partner its true and lawful attorney, in its name, place and stead to make, execute and sign any and all instruments, documents or certificates on behalf of any Defaulting Limited Partner in order to give effect to any remedy against such Defaulting Limited Partner (including, but not limited to, the remedies set forth in this paragraph 4.4(b)). (ix) The Partners agree that the General Partner’s authority and discretion to enforce any remedy against a Defaulting Limited Partner (including but not limited to the remedies set forth in this paragraph 4.4(b)) supersede any fiduciary duties of the General Partner to such Defaulting Limited Partner. The Partners further agree that the remedies set forth in this paragraph 4.4(b) are fair and reasonable in light of the difficulty in ascertaining the actual damages that would be incurred by the Partnership and the nondefaulting Partners as a result of the Defaulting Limited Partner’s failure to contribute capital when due pursuant to the terms of this Agreement.

Noncontributing Partners. (a) The Partnership shall be entitled to enforce the obligations of each Limited Partner to make the contributions to capital (including any obligations to return distributions) set forth in this AgreementSection 4.2, and the Partnership shall have all remedies available at law or in equity in the event any such contribution is not so made. If any legal proceedings relating to the failure of a Limited Partner to make such a contribution are commenced, such Limited Partner shall pay all costs and expenses incurred by the Partnership, including reasonable attorneys’ feesfees and expenses, in connection with such proceedings. (b) Additionally, without in any way limiting any remedy which the Partnership may pursue pursuant to paragraph 4.4(aSection 4.5(a), should any Limited Partner fail to make any of the capital contributions or fulfill any of the distribution-return obligations required of it under this Agreement and such failure shall have continued uncured for ten (10) or more business days after delivery of written notice by the General Partner to such Limited PartnerAgreement, such Limited Partner shall be in default (a “Defaulting Limited Partner”)default. In the event of such default, the General Partner may, in carrying out what it determines to be in the best interests of the nondefaulting Limited Partnersits sole discretion, elect to enforce one or more of the provisions of this paragraph 4.4(bSection 4.5(b) in connection with such a default, to which each Limited Partner hereby expressly consents, provided such default shall have continued uncured for ten (10) or more days after delivery of the Default Notice described in the following sentence (after such ten (10)-day period, such Limited Partner shall be deemed a “Defaulting Limited Partner”). The General Partner shall deliver written notice to such Defaulting Limited Partner if in the event that it determines to utilize one or more of the powers set forth in paragraph 4.4(a) or this paragraph 4.4(bSection 4.5(b) (a “Default Notice”). Upon If the default shall have continued uncured for ten (10) or more days after delivery of the Default Notice, the Defaulting Limited Partner shall not be permitted to participate in any vote or consent of the Partners required under this Agreement or permitted under the Act (and the Capital Commitment of such Defaulting Limited Partner shall be disregarded for purposes of calculating a Majority in Interest or other Percentage in Interest of the Limited Partners for purposes of this Agreement), and the Defaulting Limited Partner may not make any additional contributions of capital against such Defaulting Limited Partner’s Capital Commitment (other than to fund management fees Management Fees and other expenses of the Partnership) without the written consent of the General Partner, which consent may be granted or denied in the sole discretion of the General Partner. In enforcing any of the following provisions of this Section 4.5(b) against a Defaulting Limited Partner, the General Partner agrees that it shall use commercially reasonable efforts to enforce such provisions against such Defaulting Limited Partner in a manner so as to prevent the other non-Defaulting Limited Partners from bearing a net economic burden attributable to Management Fees that, absent such default, would be borne by the Defaulting Limited Partner if the Defaulting Limited Partner were to retain its interest in the Partnership and make capital contributions in respect thereof. (i) The General Partner may waive, without the consent of any other Partner, in whole or in part, the requirement of payment with respect to any due and unpaid capital contributions by a Defaulting Limited Partner pursuant to this Agreement and reduce such Defaulting Limited Partner’s Capital Commitment accordingly. (ii) The General Partner may extend the time of payment for a Defaulting Limited Partner of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement. (iii) The General Partner may declare the entire amount of a Defaulting Limited Partner’s then unfunded Capital Commitment to be immediately due and payable. (iv) On behalf of the Partnership, the General Partner may enforce, by appropriate legal proceedings, the Defaulting Limited Partner’s obligation to make payment on the amount of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement or to pay the entire amount of such Defaulting Limited Partner’s then unfunded Capital Commitment. (v) The General Partner may deny the Defaulting Limited Partner the right to participate in any vote or consent of the Partners required under this Agreement or permitted under the Act, whereupon the Capital Commitment of such Defaulting Limited Partner shall not be included for purposes of calculating a Majority in Interest or other Percentage in Interest of the Limited Partners for purposes of this Agreement. (vi) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(vSection 4.5(b)(vi), such Defaulting Limited Partner shall pay all expenses to be incurred or anticipated to be incurred by the Partnership in connection with the default and the interest on the amount of the contribution to the Partnership then due at the Prime Rate as of the date the contribution to the Partnership was required to be made pursuant to this Agreement plus two hundred (200) basis points per annum (or if less, the highest rate permitted by applicable law), such interest to accrue from the date the contribution to the Partnership was required to be made pursuant to this Agreement until the date the contribution is made by such Defaulting Limited Partner, unless such payment is waived by the General Partner (which waiver may be made without the consent of any other Partner). The accrued interest shall be paid by the Defaulting Limited Partner to the Partnership upon payment of such contribution. The accrued interest so paid shall not be treated as an additional contribution to the capital of the Partnership, but shall be deemed to be income to the Partnership; provided provided, however, that such income shall not be allocated to the Capital Account of the Defaulting Limited Partner. Until such time as the unpaid contribution and accrued interest thereon shall have been paid by the Defaulting Limited Partner, the General Partner may elect to withhold any or all distributions to be made to such Defaulting Limited Partner pursuant to Article 7 or Article 10 and recover any such unpaid contribution and accrued interest thereon by set off against any such distribution withheld. (vivii) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(viSection 4.5(b)(vii), the General Partner and the nondefaulting non-defaulting Limited Partners (the “Optionees”), shall have the right and the option, but not the obligation, to acquire the Partnership interest of the Defaulting Limited Partner (the “Optionor”), as follows: (1) The General Partner shall notify the Optionees of the default within twenty (20) days after it gives of the expiration of the ten (10) day notice period commencing upon delivery of the Default Notice to the Defaulting Limited PartnerNotice. Such notice shall advise each Optionee of the portion and the price of the Optionor’s interest available to it. Each The portion available to each Optionee shall be offered a pro rata portion (in accordance with capital contributions to fraction, the Partnership) numerator of which is its Capital Commitment and the denominator of which is the aggregate Capital Commitments of the available Optionor’s interestOptionees. The aggregate price for the Optionor’s interest shall be the lesser of fifty percent (50%) of (A) the amount of the Optionor’s Capital Account calculated as of the due date of the additional contribution and adjusted to reflect the allocation of the appropriate proportion of the Partnership’s unrealized gains and losses as of the due date of such defaulted contribution, and (B) the aggregate amount of the Optionor’s capital contributions actually made less any distributions (valued at their fair market value on the date of distribution in accordance with paragraph Section 12.1) on or prior to such due date. The price for each Optionee shall be prorated according to the portion of the Optionor’s interest purchased by each such Optionee. The option granted hereunder shall be exercisable at any time within after the date thirty (30) days following the date that of the initial notice of default from the General Partner notifies to the Optionees of the default Optionor by delivery to the General Partner Optionor of a notice of exercise of option together with a nonrecourse non-recourse promissory note for the purchase price and a security agreement in accordance with subparagraph (5Section 4.5(b)(vii)(5) below, which notice and documents the General Partner shall promptly forward to the Optionor. (2) Should any Optionee not exercise its option within said thirty (30) day period provided in subparagraph (1) aboveSection 4.5(b)(vii)(1), the General Partner shall immediately notify the other Optionees who have elected to exercise their option, which Optionees shall have the right and option ratably among them to acquire the portion of the Optionor’s interest not so acquired (the “Remaining Portion”) within thirty (30) days of the date of the notice specified in this subparagraph (2Section 4.5(b)(vii)(2) on the same terms as provided in subparagraph (1) aboveSection 4.5(b)(vii)(1). (3) Any amount of the Remaining Portion not acquired by the Optionees pursuant to subparagraph (2Section 4.5(b)(vii)(2) above may be acquired by the General Partner within thirty (30) days of the expiration of the thirty (30) day period specified in subparagraph (2Section 4.5(b)(vii)(2) above on the same terms as set forth in subparagraph (1) aboveSection 4.5(b)(vii)(1); provided, however, that the General Partner shall not be obligated to make the additional contributions otherwise due from the Optionor with respect to the Remaining Portion so acquired. (4) Any amount of the Remaining Portion not acquired by the Optionees and the General Partner pursuant to subparagraphs (2Sections 4.5(b)(vii)(2) or (34.5(b)(vii)(3) above may, if the General Partner deems it in the best interest of the Partnership, be sold by the General Partner to any other investor, on terms not more favorable to such other investor parties than those applicable to the Optionees’ option, and upon the consent of the General Partner, any such third party purchaser may become a Limited Partner to the extent of the interest purchased hereunder. (5) The price due from each of the General Partner and the Optionees (and, if applicable, any third party purchaser pursuant to subparagraph (4) aboveSection 4.5(b)(vii)(4)) shall be payable by a noninterest bearing, nonrecourse non recourse promissory note (in such form as the General Partner shall designate) due upon final liquidation of the Partnership. Each such note shall be secured by the portion of the Optionor’s Partnership interest so purchased by its maker pursuant to a security agreement in a form designated by the General Partner and shall be enforceable by the Optionor only against such security. (6) Upon exercise of any option hereunder, each Optionee and the General Partner (and, if applicable, any third party purchaser pursuant to subparagraph (4) aboveSection 4.5(b)(vii)(4)) shall be obligated (A) to contribute to the Partnership that portion of the additional capital then due from the Optionor equal to the percentage of the Optionor’s interest purchased by such person and (B) except as otherwise provided in Section 4.5(b)(vii)(3), to pay the same percentage of any further contributions otherwise due from such Optionor on the date such contributions are otherwise due. Each person who purchases a portion of the Optionor’s Partnership interest shall be deemed to have acquired such portion as of the due date of the additional capital contribution with respect to which the Optionor defaulted, and any distributions made after the due date on account of the Optionor’s interest shall be distributed among such purchasers (and, unless the entire interest was purchased, the Optionor) in accordance with their ultimate respective interests in the Optionor’s interest. Distributions otherwise allocable to the Optionor under the preceding sentence shall first be used to offset any defaulted contribution of the Optionor still due to the Partnership. Upon completion of any transaction hereunder, the General Partner shall cause Exhibit EXHIBIT A to be amended to reflect all necessary changes resulting therefrom including, without limitation, admission of a purchaser as a Limited Partner, and adjustment of Capital Account balances, Capital Commitment amounts and Partnership Percentages as of the date of Optionor’s default to reflect the acquisition from Optionor of the appropriate pro rata portion of each such itemitem (including, if applicable, the reduction of aggregate Capital Commitments and resulting adjustment of Partnership Percentages in connection with any acquisition of any Remaining Portion by the General Partner pursuant to Section 4.5(b)(vii)(3)). The purchase and transfer of the Partnership interest of the Optionor shall occur automatically upon exercise by any Optionee or the General Partner of its option hereunder (hereunder, or acquisition by a third any third-party purchaser of an interest pursuant to subparagraph (4) aboveSection 4.5(b)(vii)(4), without any action by Optionor. (7) Notwithstanding the sale of any portion of an Optionor’s interest pursuant to this paragraph 4.4(b)(viSection 4.5(b)(vii), such Optionor shall not be released from its unfunded Capital Commitment except as actually funded by the acquirer of any such portion of Optionor’s interest. (8) In the event that any amount of the Remaining Portion is not acquired by the Optionees, the General Partner and any third party purchasers pursuant to paragraphs 4.4(b)(vi)(1)-(4Sections 4.5(b)(vii)(1)-(4), then, in its sole discretion, the General Partner may apply any of the remedies described in paragraph 4.4(aSections 4.5(a) and this subparagraph 4.4(b4.5(b) to such unsold portion. (viiviii) The General Partner may, in its sole discretion, elect to remove such Defaulting Limited Partner from the Partnership, in which such event (1) fifty percent (50%) all of the Defaulting Limited Partner’s Capital Account balance shall be forfeited and reallocated to the Capital Accounts of the nondefaulting non defaulting Partners proportionally, based on, with respect to each such Partner, the ratio that its Partnership Percentage immediately prior to such calculation bears to the aggregate Partnership Percentages of all Partners (other than the Defaulting Limited Partner), ) and (2) the remaining fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be payable to the Defaulting Limited Partner by the Partnership in installments over a period of no more than three (3) years from the effective date of the removal of such Defaulting Limited Partner pursuant to this paragraph 4.4(b)(vii), and (3) the Defaulting Limited Partner’s Partnership Percentage shall be reduced to zero. (viiiix) The General Partner may, in its sole discretion, elect to use reasonable efforts to assist such Defaulting Limited Partner transfer its entire interest in the Partnership. (x) Notwithstanding anything to the contrary in this Agreement, each Limited Partner (1) agrees that it will execute any instruments or perform any other acts that are or may be necessary to effectuate and carry out the transactions contemplated by this paragraph 4.4Section 4.5, and (2) designates and appoints the General Partner its true and lawful attorney, in its name, place and stead stead, to make, execute execute, and sign any and all instruments, documents documents, or certificates on behalf of any Defaulting Limited Partner in order to give effect to any remedy against such Defaulting Limited Partner (including, but not limited to, the remedies set forth in this paragraph 4.4(bSection 4.5(b)). (ixxi) The Partners agree that the General Partner’s authority and discretion to enforce any remedy against a Defaulting Limited Partner (including but not limited to the remedies set forth in this paragraph 4.4(bSection 4.5(b)) supersede any fiduciary duties of the General Partner to such Defaulting Limited Partner. The Partners further agree that the remedies set forth in this paragraph 4.4(bSection 4.5(b) are fair and reasonable in light of the difficulty in ascertaining the actual damages that would be incurred by the Partnership and the nondefaulting non defaulting Partners as a result of the Defaulting Limited Partner’s failure to contribute capital when due pursuant to the terms of this Agreement. (xii) Notwithstanding anything to the contrary in this Section 4.5, a Regulated Partner shall not be declared to be in default by the General Partner with respect to any due and unpaid capital contributions in the event that such Regulated Partner is entitled to withdraw from the Partnership (or the General Partner has requested such withdrawal) pursuant to Article 13 and the failure to make such due and unpaid capital contributions is the consequence of or attributable to such withdrawal.

Noncontributing Partners. (a) The Partnership shall be entitled to enforce the obligations of each Limited Partner to make the contributions to capital (including any obligations to return distributions) set forth in paragraph 4.2 or this Agreementparagraph 4.4, and the Partnership shall have all remedies available at law or in equity in the event if any such contribution is not so made. If any legal proceedings relating to the failure of a Limited Partner to make such a contribution are commenced, such Such Limited Partner shall pay all costs and expenses incurred by the Partnership, including reasonable attorneys’ fees, Partnership in connection with such proceedingsLimited Partner’s failure to make a capital contribution, including, without limitation, attorneys’ fees and all fees and expenses incurred in connection with any legal proceeding relating to the failure of such Limited Partner to make such a contribution. (b) Additionally, without in any way limiting any remedy which that the Partnership may pursue pursuant to paragraph 4.4(a), should any Limited Partner fail to make any of the capital contributions or fulfill any of the distribution-return obligations required of it under this Agreement and such failure shall have continued uncured for ten (10) or more business days after delivery of written notice by the General Partner to such Limited PartnerAgreement, such Limited Partner shall be in default (a “Defaulting Limited Partner”). In the event of such default, the General Partner may, in carrying out what it determines to be in the best interests of the nondefaulting Limited Partnersits sole discretion, elect to enforce one or more of the provisions of this paragraph 4.4(b) in connection with such a default, to which each Limited Partner hereby expressly consents, provided such default shall have continued uncured for ten (10) or more days after delivery of the Default Notice described in the following sentence. The General Partner shall deliver written notice to such Defaulting Limited Partner if it determines to utilize one or more of the powers set forth in paragraph 4.4(a) or this paragraph 4.4(b) (a “Default Notice”). Upon If the default shall have continued uncured for ten (10) or more days after delivery of the Default Notice, the Defaulting Limited Partner shall not be permitted to participate in any vote or consent of the Partners required under this Agreement or permitted under the Act (and the Capital Commitment of such Defaulting Limited Partner shall be disregarded for purposes of calculating a Majority in Interest or other Percentage in Interest of the Limited Partners for purposes of this Agreement), and the Defaulting Limited Partner may not make any additional contributions of capital against such Defaulting Limited Partner’s Capital Commitment (other than to fund management fees the Management Fee and other expenses of the PartnershipPartnership Expenses, which contribution such Defaulting Limited Partner shall be required to make notwithstanding its failure to make a required capital contribution) without the written consent of the General Partner, which consent may be granted or denied in the sole discretion of the General Partner. (i) The General Partner may waive, without the consent of any other Partner, in whole or in part, the requirement of payment with respect to any due and unpaid capital contributions by a Defaulting Limited Partner pursuant to this Agreement and reduce such Defaulting Limited Partner’s Capital Commitment and Partnership Percentage accordingly. (ii) The General Partner may extend the time of for payment for a Defaulting Limited Partner of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement. (iii) The General Partner may declare the entire amount of a Defaulting Limited Partner’s then unfunded Capital Commitment to be immediately due and payable. (iv) On behalf of the Partnership, the General Partner may enforce, by appropriate legal proceedings, the Defaulting Limited Partner’s obligation to make payment on the amount of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement or to pay the entire amount of such Defaulting Limited Partner’s then unfunded Capital Commitment. (v) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(v), such Defaulting Limited Partner shall pay all expenses to be incurred or anticipated to be incurred by the Partnership in connection with the default and the interest on the amount of the unpaid contribution to the Partnership then due at the Prime Rate as of the date the contribution to the Partnership was required to be made pursuant to this Agreement plus two hundred four percent (2004%) basis points per annum (or if less, the highest rate permitted by applicable law), such interest to accrue from the date the contribution to the Partnership was required to be made pursuant to this Agreement until the date the contribution is made by such Defaulting Limited Partner, unless such payment is waived by the General Partner (which waiver may be made without the consent of any other Partner). The accrued interest shall be paid by the Defaulting Limited Partner to the Partnership upon payment of such contribution. The accrued interest so paid shall not be treated as an additional contribution to the capital of the Partnership, but shall be deemed to be income to the Partnership; provided that such income shall not be allocated to the Capital Account of the Defaulting Limited Partner. Until such time as the unpaid contribution and accrued interest thereon shall have been paid by the Defaulting Limited Partner, the General Partner may elect to withhold any or all distributions to be made to such Defaulting Limited Partner pursuant to Article 7 or Article 10 and recover any such unpaid contribution and accrued interest thereon by set off against any such distribution withheld. (vi) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(vi), the General Partner and the nondefaulting Limited Partners (the “Optionees”), shall have the right and the option, but not the obligation, to acquire the Partnership interest of the Defaulting Limited Partner (the “Optionor”), as follows: (1) The General Partner shall notify the Optionees of the default within twenty (20) days after it gives of the expiration of the ten (10) day notice period commencing upon delivery of the Default Notice to the Defaulting Limited PartnerNotice. Such notice shall advise each Optionee of the portion and the price of the Optionor’s interest available to it. Each The portion available to each Optionee shall be offered a pro rata portion (in accordance with capital contributions to fraction, the Partnership) numerator of which is its Capital Commitment and the denominator of which is the aggregate Capital Commitments of the available Optionor’s interestOptionees. The aggregate price for the Optionor’s interest shall be the lesser of fifty percent (50%) of (A) the amount of the Optionor’s Capital Account calculated as of the due date of the additional contribution and adjusted to reflect the allocation of the appropriate proportion of the Partnership’s unrealized gains and losses as of the due date of such defaulted contribution, and (B) the aggregate amount of the Optionor’s capital contributions actually made less any distributions (valued at their fair market value on the date of distribution in accordance with paragraph 12.1) on or prior to such due date. The price for each Optionee shall be prorated according to the portion of the Optionor’s interest purchased by each such Optionee. The option granted hereunder shall be exercisable at any time within for a period of thirty (30) days commencing on the date that is thirty (30) days following the date that of the initial notice of default from the General Partner notifies to the Optionees of the default Optionor by delivery to the General Partner Optionor of a notice of exercise of option together with a nonrecourse promissory note for the purchase price and a security agreement in accordance with subparagraph (5) below, which notice and documents the General Partner shall promptly forward to the Optionor. (2) Should any Optionee not exercise its option within said thirty (30) day period provided in subparagraph (1) above), the General Partner shall immediately notify the other Optionees who have elected to exercise their option, which Optionees shall have the right and option ratably among them to acquire the portion of the Optionor’s interest not so acquired (the “Remaining Portion”) within thirty (30) days of the date of the notice specified in this subparagraph (2) on the same terms as provided in subparagraph (1) above). (3) Any amount of the Remaining Portion not acquired by the Optionees pursuant to subparagraph (2) above may be acquired by the General Partner within thirty (30) days of the expiration of the thirty (30) day period specified in subparagraph (2) above on the same terms as set forth in subparagraph (1) above); provided, however, that the General Partner may, but shall not be obligated to, make the additional contributions otherwise due from the Optionor with respect to the Remaining Portion so acquired (provided that the Capital Commitment shall be adjusted to reflect any nonpayment of such additional contributions). The General Partner shall provide notice to the Limited Partners regarding its acquisition of all or any portion of an Optionor’s interest in the Partnership pursuant to this subparagraph (3). (4) Any amount of the Remaining Portion not acquired by the Optionees and the General Partner pursuant to subparagraphs (2) or (3) above may, if the General Partner deems it in the best interest of the Partnership, be sold by the General Partner to any other investor, on terms not more favorable to such other investor parties than those applicable to the Optionees’ option, and upon the consent of the General Partner, any such third party purchaser may become a Limited Partner to the extent of the interest purchased hereunder. (5) The price due from each of the General Partner and the Optionees (and, if applicable, any third party purchaser pursuant to subparagraph (4) above)) shall be payable by a noninterest bearing, nonrecourse promissory note (in such form as the General Partner shall designate) due upon final liquidation of the Partnership. Each such note shall be secured by the portion of the Optionor’s Partnership interest so purchased by its maker pursuant to a security agreement in a form designated by the General Partner and shall be enforceable by the Optionor only against such security. (6) Upon exercise of any option hereunder, each Optionee and the General Partner (and, if applicable, any third party purchaser pursuant to subparagraph (4) above)) shall be obligated (A) to contribute to the Partnership that portion of the additional capital then due from the Optionor equal to the percentage of the Optionor’s interest purchased by such person and (B) except as otherwise provided in subparagraph (3), to pay the same percentage of any further contributions otherwise due from such Optionor on the date such contributions are otherwise due. Each person who purchases a portion of the Optionor’s Partnership interest shall be deemed to have acquired such portion as of the due date of the additional capital contribution with respect to which the Optionor defaulted, and any distributions made after the due date on account of the Optionor’s interest shall be distributed among such purchasers (and, unless the entire interest was purchased, the Optionor) in accordance with their ultimate respective interests in the Optionor’s interest. Distributions otherwise allocable to the Optionor under the preceding sentence shall first be used to offset any defaulted contribution of the Optionor still due to the Partnership. Upon completion of any transaction hereunder, the General Partner shall cause Exhibit A the schedule of partners to be amended to reflect all necessary changes resulting therefrom including, without limitation, admission of a purchaser as a Limited Partner, and adjustment of Capital Account balances, Capital Commitment amounts and Partnership Percentages as of the date of Optionor’s default to reflect the acquisition from Optionor of the appropriate pro rata portion of each such itemitem (including, if applicable, the reduction of aggregate Capital Commitments and resulting adjustment of Partnership Percentages in connection with any acquisition of any Remaining Portion by the General Partner pursuant to subparagraph (3)). The purchase and transfer of the Partnership interest of the Optionor shall occur automatically upon exercise by any Optionee or the General Partner of its option hereunder (or acquisition by a third party purchaser of an interest pursuant to subparagraph (4) above)hereunder, without any action by Optionor. (7) Notwithstanding the sale of any portion of an Optionor’s interest pursuant to this paragraph 4.4(b)(vi), such Optionor shall not be released from its unfunded Capital Commitment except as actually funded by the acquirer of any such portion of Optionor’s interest. (8) In the event that any amount of the Remaining Portion is not acquired by the Optionees, the General Partner and any third party purchasers pursuant to paragraphs 4.4(b)(vi)(1)-(4), then, in its sole discretion, the General Partner may apply any of the remedies described in paragraph paragraphs 4.4(a) and this subparagraph 4.4(b(b) to such unsold portion. (vii) The General Partner may, in its sole discretion, elect to remove such Defaulting Limited Partner from the Partnership, in which such event (1) fifty one hundred percent (50100%) of the Defaulting Limited Partner’s Capital Account balance shall be forfeited and reallocated to the Capital Accounts of the nondefaulting non-defaulting Partners proportionally, based on, with respect to each such Partner, the ratio that its Partnership Percentage immediately prior to such calculation bears to the aggregate Partnership Percentages of all Partners (other than the Defaulting Limited Partner), ) and (2) the remaining fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be payable to the Defaulting Limited Partner by the Partnership in installments over a period of no more than three (3) years from the effective date of the removal of such Defaulting Limited Partner pursuant to this paragraph 4.4(b)(vii), and (3) the Defaulting Limited Partner’s Partnership Percentage shall be reduced to zero. (viii) Notwithstanding anything In addition to the contrary foregoing, the General Partner may pursue any other remedy that the General Partner, in its sole discretion, deems advisable. (c) Notwithstanding any other provision of this Agreement, each Limited Partner (1) agrees that it will execute any instruments or perform any other acts that are or may be necessary to effectuate and carry out the transactions contemplated by this paragraph 4.4, and (2) designates and appoints the General Partner its true and lawful representative and attorney-in-fact, in its name, place place, and stead to make, execute and sign execute, sign, acknowledge, deliver or file any and all instruments, documents or certificates on behalf of any Defaulting Limited Partner in order to give effect to any remedy against such Defaulting Limited Partner (including, but not limited to, the remedies set forth in this paragraph 4.4(b)). (ixd) The Partners agree that the General Partner’s authority and discretion to enforce any remedy against a Defaulting Limited Partner (including but not limited to the remedies set forth in this paragraph 4.4(b)4.4) supersede any fiduciary duties of the General Partner to such Defaulting Limited Partner. The Partners further agree that the remedies set forth in this paragraph 4.4(b) 4.4 are fair and reasonable in light of the difficulty in ascertaining the actual damages that would be incurred by the Partnership and the nondefaulting non-defaulting Partners as a result of the Defaulting Limited Partner’s failure to contribute capital when due pursuant to the terms of this Agreement.

Noncontributing Partners. (a) The Partnership shall be entitled to enforce the obligations of each Limited Partner to make the contributions to capital (including any obligations to return distributions) set forth specified in this AgreementSections 3.1 and 3.2 herein, and the Partnership shall have all remedies available at law or in equity in the event any such contribution is not so made. If any legal proceedings relating to the failure of a Limited Partner to make such a contribution are commenced, such Limited Partner shall pay all costs and expenses incurred by the Partnership, including reasonable attorneys’ feesany or all of the remedies set forth in Sections 3.3(b), in connection with such proceedings(c), (d) or (e) herein. (b) Additionally, without in any way limiting any remedy which the Partnership may pursue pursuant to paragraph 4.4(a), should If any Limited Partner fail fails to make any of the capital contributions a contribution required under Section 3.1 or fulfill any of the distribution-return obligations required of it under this Agreement and such failure shall have continued uncured for ten (10) or more business 3.2 herein within 10 days after delivery the date such contribution is due, then interest at an annual rate equal to the lesser of written (i) the highest prime rate reported in The Wall Street Journal, from time to time, plus two percent or (ii) the highest rate of interest such Limited Partner is legally permitted to pay in such circumstance, shall be charged on the amount due from the date such amount became due until the earlier of (x) the date paid or (y) the date of any notice given to such Limited Partner by the General Partner pursuant to Section 3.3(c) or (d) herein. Such interest shall be deducted from such Partner's Capital Account on a periodic basis at the end of each fiscal quarter; provided, however, that the amount of interest charged as provided in this Section 3.3(b) shall not exceed the amount of such Limited Partner, 's Capital Account. Any interest deducted from such Limited Partner Partner's Capital Account shall be credited to the Capital Accounts of the other Partners in default the manner provided in Section 3.5(a)(iv) herein. (c) In addition, if any Limited Partner fails to make a “Defaulting Limited Partner”). In contribution required under Section 3.1 or 3.2 herein within 20 days after the event of date such defaultcontribution is due, unless the General Partner has acted pursuant to Section 3.3(d) herein, the General Partner may, in carrying out what it determines to be in the best interests of the nondefaulting Limited Partners, elect to enforce one or more of the provisions of this paragraph 4.4(b) in connection with such a default, to which each Limited Partner hereby expressly consents. The General Partner shall deliver written notice to such Defaulting Limited Partner if it determines to utilize one or more of the powers set forth in paragraph 4.4(a) or this paragraph 4.4(b) (a “Default Notice”). Upon delivery of the Default Notice, the Defaulting Limited Partner shall not be permitted to participate in any vote or consent of the Partners required under this Agreement or permitted under the Act (and the Capital Commitment of such Defaulting Limited Partner shall be disregarded for purposes of calculating a Majority in Interest or other Percentage in Interest of the Limited Partners for purposes of this Agreement), and the Defaulting Limited Partner may not make any additional contributions of capital against such Defaulting Limited Partner’s Capital Commitment (other than to fund management fees and other expenses of the Partnership) without the written consent of the General Partner, which consent may be granted or denied in the sole discretion of the General Partner. (i) The General Partner may waive, without the consent of any other Partner, in whole or in part, the requirement of payment with respect to any due and unpaid capital contributions by a Defaulting Limited Partner pursuant to this Agreement and reduce such Defaulting Limited Partner’s Capital Commitment accordingly. (ii) The General Partner may extend the time of payment for a Defaulting Limited Partner of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement. (iii) The General Partner may declare the entire amount of a Defaulting Limited Partner’s then unfunded Capital Commitment to be immediately due and payable. (iv) On behalf of the Partnership, the General Partner may enforce, by appropriate legal proceedings, the Defaulting Limited Partner’s obligation to make payment on the amount of any due and unpaid capital contributions by such Defaulting Limited Partner pursuant to this Agreement or to pay the entire amount of such Defaulting Limited Partner’s then unfunded Capital Commitment. (v) Should the General Partner, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(v)declare, by notice to such Defaulting Limited Partner shall pay all expenses to be incurred or anticipated to be incurred by the Partnership in connection with the default and the interest on the amount of the contribution to the Partnership then due at the Prime Rate as of the date the contribution to the Partnership was required to be made pursuant to this Agreement plus two hundred (200) basis points per annum (or if less, the highest rate permitted by applicable law), such interest to accrue from the date the contribution to the Partnership was required to be made pursuant to this Agreement until the date the contribution is made by such Defaulting Limited Partner, unless that such payment is waived by the General Partner (which waiver may be made without the consent of any other Limited Partner). The accrued interest shall be paid by the Defaulting Limited Partner to the Partnership upon payment of such contribution. The accrued interest so paid shall not be treated as an additional contribution to the capital of the Partnership, but 's Commitment shall be deemed to be income reduced to the Partnership; provided that amount of any contributions of capital timely made pursuant to Section 3.1 or 3.2 herein. Upon such income notice, such Limited Partner shall not have no right to make any contribution thereafter (including the contribution as to which the nonpayment occurred and any contribution otherwise required to be allocated made thereafter pursuant to the Capital Account terms of the Defaulting Limited PartnerSection 3.1 or 3.2 herein). Until Upon such time as the unpaid contribution and accrued interest thereon shall have been paid by the Defaulting Limited Partnernotice, the General Partner may elect shall amend Schedule A to withhold any or all distributions to be made to such Defaulting Limited Partner pursuant to Article 7 or Article 10 and recover any such unpaid contribution and accrued interest thereon by set off against any such distribution withheldthis Agreement. (vid) Should If any Limited Partner fails to make a contribution required under Section 3.1 or 3.2 herein within 20 days after the date such contribution is due, unless the General PartnerPartner has acted pursuant to Section 3.3(c) herein, the General Partner may, in its sole discretion, elect to exercise the provisions of this paragraph 4.4(b)(vi)declare, by notice to such Limited Partner, that such Limited Partner is in default. If the General Partner so elects to declare such Limited Partner in default (such Limited Partner being hereinafter referred to as the "Optionor"), then the other Limited Partners that are not in default (the "Optionees") and the nondefaulting Limited Partners (the “Optionees”), General Partner shall have the right and the option, but not the obligation, option to acquire the Partnership interest interest, which shall include the Optionor's Capital Account, of the Defaulting Limited Partner Optionor (the “Optionor”), as follows"Optioned Partnership Interest") on the following terms: (1i) The General Partner shall notify give the Optionees notice promptly after declaration of the default within twenty (20) days after it gives the Default Notice to the Defaulting Limited Partnerany such default. Such notice shall advise each Optionee of the portion of the Optioned Partnership Interest available to it and the price therefor (as hereinafter determined). The portion available to each Optionee shall be that portion of the Optioned Partnership Interest that bears the same ratio to the Optioned Partnership Interest as each Optionee's Partner's Percentage bears to the aggregate Partners' Percentages, exclusive of the Partner's Percentage of the Optionor’s interest available to it. Each Optionee shall be offered a pro rata portion (in accordance with capital contributions to the Partnership) of the available Optionor’s interest. The aggregate price for the Optionor’s interest Optioned Partnership Interest shall be the lesser assumption of fifty percent the unpaid Commitment (50%both that portion then due and amounts due in the future) of the Optionor (A) the amount of the Optionor’s Capital Account calculated as of the due date of the additional contribution and adjusted to reflect the allocation of the appropriate proportion of the Partnership’s unrealized gains and losses as of the due date of such defaulted contribution, and (B) the aggregate amount of the Optionor’s capital contributions actually made less any distributions (valued at their fair market value on the date of distribution in accordance with paragraph 12.1) on or prior to such due date"Purchase Price"). The price Purchase Price for each Optionee shall be prorated according to the portion of the Optionor’s interest Optioned Partnership Interest purchased by each such Optionee so that the percentage of the unpaid Commitment assumed by each Optionee is the same as the percentage of the Optioned Partnership Interest purchased by such Optionee. The option granted hereunder shall be exercisable by each Optionee, in whole only, at any time within thirty (30) 30 days following of the date that of the notice from the General Partner notifies by the Optionees of the default by delivery to the General Partner of (A) a notice of exercise of option together with a nonrecourse promissory note for option, and (B) the purchase price and a security agreement contribution to capital due in accordance with subparagraph (5Section 3.3(d)(v)(A) below, which notice and documents the herein. The General Partner shall promptly forward the above notices of exercise of option received to the Optionor. (2ii) Should any Optionee not exercise its option within said thirty (30) the 30 day period provided in subparagraph (1Section 3.3(d)(i) aboveherein, the General Partner Partner, within 10 days of the end of such period, shall immediately notify the other Optionees who have elected to exercise previously exercised their optionoptions in full, which that such Optionees shall have the right and option ratably among them to acquire the portion of the Optionor’s interest Optioned Partnership Interest not so previously acquired (the “"Remaining Portion”") within thirty (30) 10 days of the date of the notice specified in this subparagraph Section 3.3(d) (2ii) on the same terms as provided in subparagraph (1Section 3.3(d)(i) aboveherein. (3iii) Any The amount of the Remaining Portion not acquired by the Optionees pursuant to subparagraph Section 3.3(d) (2ii) above herein may be acquired by the General Partner within thirty (30) 10 days of the expiration of the thirty (30) 10 day period specified in subparagraph Section 3.3(d) (2ii) above herein on the same terms as set forth in subparagraph (1Section 3.3(d)(i) aboveherein. (4iv) Any To the extent that the Remaining Portion is not fully acquired by the Optionees and the General Partner pursuant to Section 3.3(d)(ii) and (iii) herein, the Partnership and/or the General Partner may, in their sole discretion, elect to exercise one or more of the remedies provided in Section 3.3(a), (b) or (c) with respect to such unacquired Remaining Portion. Alternatively, the amount of the Remaining Portion not acquired by the Optionees and the General Partner pursuant to subparagraphs Section 3.3(d)(ii) and (2iii) or (3) above herein may, if the General Partner deems it in the best interest of the Partnership, be sold by the General Partner to any other investor, Person on terms not more favorable to such other investor purchaser than those applicable to the Optionees’ option, ' option (and upon the consent of the General Partner, Partner may admit any such third party purchaser may as a Limited Partner). Any consideration received by the Partnership for such amount of the Optionor's interest in the Partnership in excess of the Purchase Price therefor shall be retained by the Partnership and allocated among the Partners' Capital Accounts in the manner provided by Section 3.5(a) (iv) herein. (vi) Upon the General Partner's purchase of any portion of the Optioned Partnership Interest pursuant to Section 3.3(d) (iii) herein, the General Partner shall also become a Limited Partner to the extent of the interest purchased hereundersuch interest. (5vii) The price due from each Upon the purchase of any portion of the Optioned Partnership Interest by an Optionee, the General Partner and the Optionees (and, if applicable, any third party purchaser or other Person pursuant to subparagraph this Section 3.3(d), the Optionor shall have no further rights or obligations under this Agreement with respect to such portion. (4viii) above) shall be payable by a noninterest bearing, nonrecourse promissory note (in such form as Upon the General Partner shall designate) due upon final liquidation purchase of the Partnership. Each such note shall be secured by the any portion of the Optionor’s Optioned Partnership interest so purchased by its maker pursuant to a security agreement in a form designated by the General Partner and shall be enforceable by the Optionor only against Interest, for purposes of computing such security. (6) Upon exercise of any option hereunderpurchaser's Partner's Percentage, each Optionee and the General Partner (and, if applicable, any third party such purchaser pursuant to subparagraph (4) above) shall be obligated (A) to contribute to the Partnership that portion of the additional capital then due from the Optionor equal to the percentage of the Optionor’s interest purchased by such person and (B) to pay the same percentage of any further contributions otherwise due from such Optionor on the date such contributions are otherwise due. Each person who purchases a portion of the Optionor’s Partnership interest shall be deemed to have acquired such a Partner's Percentage (or the Partner's Percentage of any Optionee, shall be increased by an amount) equal to the percentage which the purchased portion as of the due date Optioned Partnership Interest represents of the additional capital contribution with respect to which the Optionor defaulteddefaulting Limited Partner's entire Partnership Interest, and any distributions made after the due date on account Partner's Percentage of the Optionor’s interest such defaulting Limited Partner shall be distributed among such purchasers (and, unless the entire interest was purchased, the Optionor) in accordance with their ultimate respective interests in the Optionor’s interest. Distributions otherwise allocable to the Optionor under the preceding sentence shall first be used to offset any defaulted contribution of the Optionor still due to the Partnership. Upon completion of any transaction hereunder, the General Partner shall cause Exhibit A to be amended to reflect all necessary changes resulting therefrom including, without limitation, admission of a purchaser as a Limited Partner, and adjustment of Capital Account balances, Capital Commitment amounts and Partnership Percentages as of the date of Optionor’s default to reflect the acquisition from Optionor of the appropriate pro rata portion of each such item. The purchase and transfer of the Partnership interest of the Optionor shall occur automatically upon exercise by any Optionee or the General Partner of its option hereunder (or acquisition reduced by a third party purchaser of an interest pursuant to subparagraph (4) above), without any action by Optionorcorresponding amount. (7e) Notwithstanding the sale of any portion of an Optionor’s interest pursuant to this paragraph 4.4(b)(vi), such Optionor shall not be released from its unfunded Capital Commitment except as actually funded by the acquirer of any such portion of Optionor’s interest. (8) In the event that any amount of the Remaining Portion is not acquired by the Optionees, the General Partner and any third party purchasers pursuant to paragraphs 4.4(b)(vi)(1)-(4), then, in its sole discretion, the General Partner may apply any of the remedies described in paragraph 4.4(a) and this subparagraph 4.4(b) to such unsold portion. (vii) The General Partner may, in its sole discretion, elect to remove such Defaulting Each Limited Partner from hereby grants to the Partnership, Partnership a security interest in which such event (1) fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be forfeited 's interest to secure the full and reallocated prompt payment to the Capital Accounts Partnership of the nondefaulting Partners proportionally, based on, with respect to each such Partner, the ratio that its Partnership Percentage immediately prior to such calculation bears to the aggregate Partnership Percentages of all Partners (other than the Defaulting Limited Partner), (2) the remaining fifty percent (50%) of the Defaulting Limited Partner’s Capital Account balance shall be payable to the Defaulting Limited Partner by the Partnership in installments over a period of no more than three (3) years from the effective date of the removal of such Defaulting Limited Partner pursuant to this paragraph 4.4(b)(vii), and (3) the Defaulting Limited Partner’s Partnership Percentage shall be reduced to zero's Commitment. (viii) Notwithstanding anything to the contrary in this Agreement, each Limited Partner (1) agrees that it will execute any instruments or perform any other acts that are or may be necessary to effectuate and carry out the transactions contemplated by this paragraph 4.4, and (2) designates and appoints the General Partner its true and lawful attorney, in its name, place and stead to make, execute and sign any and all instruments, documents or certificates on behalf of any Defaulting Limited Partner in order to give effect to any remedy against such Defaulting Limited Partner (including, but not limited to, the remedies set forth in this paragraph 4.4(b)). (ix) The Partners agree that the General Partner’s authority and discretion to enforce any remedy against a Defaulting Limited Partner (including but not limited to the remedies set forth in this paragraph 4.4(b)) supersede any fiduciary duties of the General Partner to such Defaulting Limited Partner. The Partners further agree that the remedies set forth in this paragraph 4.4(b) are fair and reasonable in light of the difficulty in ascertaining the actual damages that would be incurred by the Partnership and the nondefaulting Partners as a result of the Defaulting Limited Partner’s failure to contribute capital when due pursuant to the terms of this Agreement.