Common use of Remedies upon a Capital Default Clause in Contracts

Remedies upon a Capital Default. (a) Upon any Capital Default by a Defaulting Partner, the Partnership shall provide such Defaulting Partner with written notice thereof and a ten (10) Business Day period from the date of delivery of such notice within which to cure such Capital Default (the “Cure Period”) and, in the sole discretion of the General Partner, shall immediately have the right to declare that interest shall accrue on the outstanding unpaid balance of such requested Capital Contribution, from and including the date such payment was due until the earlier of the date of payment to the Partnership or, following the expiration of the Cure Period, the election by the Partnership to pursue the other remedies set forth in this Section, at a rate equal to the lesser of the rate of nine percent (9%) per annum over the Prime Rate and the maximum rate permitted by applicable law (the “Default Rate”). In the event that the Defaulting Partner has not cured the Capital Default prior to the expiration of the Cure Period, then, following the expiration of the Cure Period, the Partnership, in the sole discretion of the General Partner, shall have the right to take one or more of the following actions (including, but not limited to, all of the rights afforded to a secured party under the Uniform Commercial Code): (i) continue to charge interest at the Default Rate on the outstanding unpaid balance of such requested Capital Contribution until the date of payment to the Partnership, (ii) cause any distributions otherwise payable to the Defaulting Partner under this Agreement to be set off or withheld from such Defaulting Partner in accordance with Section 3.6 hereof, (iii) suspend all voting rights and rights to distributions, (iv) redeem up to thirty percent (30%) of the Interest then owned by the Defaulting Partner at a price equal to $1.00 which would result in corresponding pro rata increases to the Interests of the non-Defaulting Partners, (v) offer the Defaulting Partner’s Interest for sale to the other Partners at such price and on such terms determined by the Partnership in the reasonable discretion of the General Partner, subject to compliance with the Transfer provisions of this Agreement, and/or (vi) cause the Defaulting Partner’s Interest to be sold to a third party at such price and on such terms as may be determined by the Partnership in the reasonable discretion of the General Partner. The proceeds from the sale of a Defaulting Partner’s Interest under clauses (v) and (vi) above shall be used to fund the Capital Contribution requested from the Defaulting Partner and/or set off or withheld from such Defaulting Partner in accordance with Section 3.6 hereof and any remaining amounts may be used for any appropriate Partnership purpose, which purpose shall be determined by the Partnership in the sole discretion of the General Partner. A Defaulting Partner shall remain liable for the payment of Capital Contributions as the same are called under this Agreement and the Partnership may exercise the remedies set forth above for every subsequent Capital Default by the Defaulting Partner. The rights and remedies referred to in this Section shall be in addition to, and not in limitation of, any other rights available to the Partnership under this Agreement, the relevant Subscription Agreement or at law or in equity. The Partnership may proceed to collect from any Defaulting Partner any amount due from such Defaulting Partner as and when due, as well as all costs and expenses of collection incurred by the Partnership (including reasonable fees and disbursements of legal counsel). (b) Upon any Capital Default, the Partnership may deliver Capital Call Notices to the non-Defaulting Partners which shall call for a Capital Contribution from each non-Defaulting Partner equal to such non-Defaulting Partner’s pro rata share (based upon such non-Defaulting Partner’s Capital Commitment in relation to the aggregate Capital Commitments of all the non-Defaulting Partners) of the Capital Contribution which the Defaulting Partner(s) failed to make, provided that, no non-Defaulting Partner shall be required to make a Capital Contribution with respect to a Capital Default by a Defaulting Partner that is greater than twenty-five percent (25%) of such non-Defaulting Partner’s initial Capital Contribution with respect to such Capital Call. Each non-Defaulting Partner which shall have made an additional Capital Contribution as a result of a Capital Default by a Defaulting Partner shall have its Percentage Interest in the Partnership increased and the Defaulting Partner shall have its Percentage Interest in the Partnership decreased, so that each Partner’s Percentage Interest in the Partnership shall be based on the amount of Capital Contributions contributed by such Partner divided by the total Capital Contributions contributed to the Partnership by all Partners. A Capital Default by any Partner shall not relieve any other Partner of its obligation to make Capital Contributions to the Partnership. Any Capital Call made pursuant to this Section 3.5(b) shall not increase any non-Defaulting Partner’s Capital Commitment. Notwithstanding the foregoing, this Section 3.5(b) shall not be applied in a manner that is inconsistent with Section 3.5(a) hereof.

Remedies upon a Capital Default. (a) Upon any Capital Default failure by one or more Partners (each, a "Defaulting Partner") to pay in full when due any Capital Contribution (a "Capital Default"), the Partnership shall provide such Defaulting Partner with written notice thereof and a ten (10) Business Day period from the date of delivery of such notice within which to cure such Capital Default (the “Cure Period”) andPartnership, in the sole discretion of the General Partner, shall immediately have the right to declare that interest shall accrue on the outstanding unpaid balance of such requested Capital Contribution, from and including the date such payment was due until the earlier of the date of payment to the Partnership or, following the expiration of the Cure Period, or the election by the Partnership to pursue the other remedies set forth in this SectionSection 4.5, at a rate equal to the lesser of the rate of nine ten percent (910%) per annum over the Prime Rate and the maximum rate permitted by applicable law (the “"Default Rate”"). For purposes of this Agreement, a Capital Default by Parkway shall also constitute a "for Cause" default by General Partner. In the event that the Defaulting Partner has not cured the of a Capital Default prior to the expiration of the Cure Period, then, following the expiration of the Cure PeriodDefault, the Partnership, in the sole discretion of the General Partner, shall have the right to take one or more of the following actions with regard to the Defaulting Partner: (including, but not limited to, all of the rights afforded to a secured party under the Uniform Commercial Code): (ia) continue to charge interest at the Default Rate on the outstanding unpaid balance of such requested Capital Contribution until the date of payment to the Partnership, (iib) cause any distributions otherwise payable to the Defaulting Partner under this Agreement to be set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof, (iiic) suspend all voting rights and rights, rights to distributionsdistributions and, to the fullest extent permitted by law, other rights provided to the Defaulting Partner under the Act and this Agreement, (ivd) redeem up to thirty in the event that a Defaulting Partner has made less than fifty percent (3050%) of its Capital Commitment or such Capital Contribution occurs after the Interest then owned by third (3rd) anniversary hereof, offer the Defaulting Partner at a price equal to $1.00 which would result in corresponding pro rata increases to the Interests unfunded portion of the non-Defaulting Partners, (v) offer the Defaulting Partner’s Interest for sale to the other Partners Partner at such price and on such terms determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof and, subject to compliance with the Transfer provisions of this Agreement, and/or (vie) cause with respect to any portion of the Defaulting Partner’s 's Interest not purchased by the other Partner in accordance with clause (d) above, cause a portion or all of such remaining Interest to be sold to a third party parties at such price and on such terms as may be determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof. The proceeds from the sale of a Defaulting Partner’s 's Interest under clauses (vd) and (vie) above shall be used to fund the Capital Contribution requested from the Defaulting Partner and/or set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof and any remaining excess amounts may be used for any appropriate Partnership purpose, which purpose shall be determined by returned to the Partnership in the sole discretion of the General Defaulting Partner. A Defaulting Partner shall remain liable for the payment of Capital Contributions as the same are called under this Agreement Section 4.5 except to the extent that such Capital Contribution is required after the third (3rd) anniversary hereof and the Partnership may exercise the remedies set forth above for every subsequent Capital Default by the Defaulting Partner. Notwithstanding any other provision in this Agreement, upon a Capital Default by one or more Partners, the non-defaulting Partner(s) may, in its sole discretion, terminate the Investment Period and, immediately upon such termination, neither the General Partner nor any of its principals or Affiliates shall have any further duties or obligations under Article XIV of this Agreement. The rights and remedies referred to in this Section shall be in addition to, and not in limitation of, any other rights available to the Partnership under this Agreement, the relevant Subscription Agreement or at law or in equity. The Partnership may proceed to collect from any Defaulting Partner any amount due from such Defaulting Partner as and when due, as well as all costs and expenses of collection incurred by the Partnership (including reasonable fees and disbursements of legal counsel). (b) Upon any Capital Default, the Partnership may deliver Capital Call Notices to the non-Defaulting Partners which shall call for a Capital Contribution from each non-Defaulting Partner equal to such non-Defaulting Partner’s pro rata share (based upon such non-Defaulting Partner’s Capital Commitment in relation to the aggregate Capital Commitments of all the non-Defaulting Partners) of the Capital Contribution which the Defaulting Partner(s) failed to make, provided that, no non-Defaulting Partner shall be required to make a Capital Contribution with respect to a Capital Default by a Defaulting Partner that is greater than twenty-five percent (25%) of such non-Defaulting Partner’s initial Capital Contribution with respect to such Capital Call. Each non-Defaulting Partner which shall have made an additional Capital Contribution as a result of a Capital Default by a Defaulting Partner shall have its Percentage Interest in the Partnership increased and the Defaulting Partner shall have its Percentage Interest in the Partnership decreased, so that each Partner’s Percentage Interest in the Partnership shall be based on the amount of Capital Contributions contributed by such Partner divided by the total Capital Contributions contributed to the Partnership by all Partners. A Capital Default by any Partner shall not relieve any other Partner of its obligation to make Capital Contributions to the Partnership. Any Capital Call made pursuant to this Section 3.5(b) shall not increase any non-Defaulting Partner’s Capital Commitment. Notwithstanding the foregoing, this Section 3.5(b) shall not be applied in a manner that is inconsistent with Section 3.5(a) hereof.

Remedies upon a Capital Default. (a) Upon any Capital Default failure by one or more Partners (each, a “Defaulting Partner”) to pay in full when due any Capital Contribution (a “Capital Default”), the Partnership shall provide such Defaulting Partner with written notice thereof and a ten (10) Business Day period from the date of delivery of such notice within which to cure such Capital Default (the “Cure Period”) and, in the sole discretion of the General Partner, shall immediately have the right to declare that interest shall accrue on the outstanding unpaid balance of such requested Capital Contribution, from and including the date such payment was due until the earlier of the date of payment to the Partnership or, following the expiration of the Cure Period, or the election by the Partnership to pursue the other remedies set forth in this SectionSection 4.5, at a rate equal to the lesser of the rate of nine ten percent (910%) per annum over the Prime Rate and the maximum rate permitted by applicable law (the “Default Rate”). For purposes of this Agreement, a Capital Default by Parkway shall also constitute a “for Cause” default by General Partner. In the event that the Defaulting Partner has not cured the of a Capital Default prior to the expiration of the Cure Period, then, following the expiration of the Cure PeriodDefault, the Partnership, in the sole discretion of the General Partner, shall have the right to take one or more of the following actions with regard to the Defaulting Partner: (including, but not limited to, all of the rights afforded to a secured party under the Uniform Commercial Code): (ia) continue to charge interest at the Default Rate on the outstanding unpaid balance of such requested Capital Contribution until the date of payment to the Partnership, (iib) cause any distributions otherwise payable to the Defaulting Partner under this Agreement to be set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof, (iiic) suspend all voting rights and rights, rights to distributionsdistributions and, to the fullest extent permitted by law, other rights provided to the Defaulting Partner under the Act and this Agreement, (ivd) redeem up to thirty in the event that a Defaulting Partner has made less than fifty percent (3050%) of its Capital Commitment or such Capital Contribution occurs after the Interest then owned by fourth (4th) anniversary hereof, offer the Defaulting Partner at a price equal to $1.00 which would result in corresponding pro rata increases to the Interests unfunded portion of the non-Defaulting Partners, (v) offer the Defaulting Partner’s Interest for sale to the other Partners Partner at such price and on such terms determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof and, subject to compliance with the Transfer provisions of this Agreement, and/or (vie) cause with respect to any portion of the Defaulting Partner’s Interest not purchased by the other Partner in accordance with clause (d) above, cause a portion or all of such remaining Interest to be sold to a third party parties at such price and on such terms as may be determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof. The proceeds from the sale of a Defaulting Partner’s Interest under clauses (vd) and (vie) above shall be used to fund the Capital Contribution requested from the Defaulting Partner and/or set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof and any remaining excess amounts may be used for any appropriate Partnership purpose, which purpose shall be determined by returned to the Partnership in the sole discretion of the General Defaulting Partner. A Defaulting Partner shall remain liable for the payment of Capital Contributions as the same are called under this Agreement and the Partnership may exercise the remedies set forth above for every subsequent Capital Default by the Defaulting Partner. The rights and remedies referred to in this Section shall be in addition to, and not in limitation of, any other rights available to the Partnership under this Agreement, the relevant Subscription Agreement or at law or in equity. The Partnership may proceed to collect from any Defaulting Partner any amount due from such Defaulting Partner as and when due, as well as all costs and expenses of collection incurred by the Partnership (including reasonable fees and disbursements of legal counsel). (b) Upon any Capital Default, the Partnership may deliver Capital Call Notices to the non-Defaulting Partners which shall call for a Capital Contribution from each non-Defaulting Partner equal to such non-Defaulting Partner’s pro rata share (based upon such non-Defaulting Partner’s Capital Commitment in relation to the aggregate Capital Commitments of all the non-Defaulting Partners) of the Capital Contribution which the Defaulting Partner(s) failed to make, provided that, no non-Defaulting Partner shall be required to make a Capital Contribution with respect to a Capital Default by a Defaulting Partner that is greater than twenty-five percent (25%) of such non-Defaulting Partner’s initial Capital Contribution with respect to such Capital Call. Each non-Defaulting Partner which shall have made an additional Capital Contribution as a result of a Capital Default by a Defaulting Partner shall have its Percentage Interest in the Partnership increased and the Defaulting Partner shall have its Percentage Interest in the Partnership decreased, so that each Partner’s Percentage Interest in the Partnership shall be based on the amount of Capital Contributions contributed by such Partner divided by the total Capital Contributions contributed to the Partnership by all Partners. A Capital Default by any Partner shall not relieve any other Partner of its obligation to make Capital Contributions to the Partnership. Any Capital Call made pursuant to this Section 3.5(b) shall not increase any non-Defaulting Partner’s Capital Commitment. Notwithstanding the foregoing, this Section 3.5(b) shall not be applied in a manner that is inconsistent with Section 3.5(a) hereof.Section

Remedies upon a Capital Default. (a) Upon any Capital Default failure by one or more Partners (each, a "Defaulting Partner") to pay in full when due any Capital Contribution (a "Capital Default"), the Partnership shall provide such Defaulting Partner with written notice thereof and a ten (10) Business Day period from the date of delivery of such notice within which to cure such Capital Default (the “Cure Period”) and, in the sole discretion of the General Partner, shall immediately have the right to declare that interest shall accrue on the outstanding unpaid balance of such requested Capital Contribution, from and including the date such payment was due until the earlier of the date of payment to the Partnership or, following the expiration of the Cure Period, or the election by the Partnership to pursue the other remedies set forth in this SectionSection 4.5, at a rate equal to the lesser of the rate of nine ten percent (910%) per annum over the Prime Rate and the maximum rate permitted by applicable law (the “"Default Rate”"). For purposes of this Agreement, a Capital Default by Parkway shall also constitute a "for Cause" default by General Partner. In the event that the Defaulting Partner has not cured the of a Capital Default prior to the expiration of the Cure Period, then, following the expiration of the Cure PeriodDefault, the Partnership, in the sole discretion of the General Partner, shall have the right to take one or more of the following actions with regard to the Defaulting Partner: (including, but not limited to, all of the rights afforded to a secured party under the Uniform Commercial Code): (ia) continue to charge interest at the Default Rate on the outstanding unpaid balance of such requested Capital Contribution until the date of payment to the Partnership, (iib) cause any distributions otherwise payable to the Defaulting Partner under this Agreement to be set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof, (iiic) suspend all voting rights and rights, rights to distributionsdistributions and, to the fullest extent permitted by law, other rights provided to the Defaulting Partner under the Act and this Agreement, (ivd) redeem up to thirty in the event that a Defaulting Partner has made less than fifty percent (3050%) of its Capital Commitment or such Capital Contribution occurs after the Interest then owned by fourth (4th) anniversary hereof, offer the Defaulting Partner at a price equal to $1.00 which would result in corresponding pro rata increases to the Interests unfunded portion of the non-Defaulting Partners, (v) offer the Defaulting Partner’s Interest for sale to the other Partners Partner at such price and on such terms determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof and, subject to compliance with the Transfer provisions of this Agreement, and/or (vie) cause with respect to any portion of the Defaulting Partner’s 's Interest not purchased by the other Partner in accordance with clause (d) above, cause a portion or all of such remaining Interest to be sold to a third party parties at such price and on such terms as may be determined by the Partnership in accordance with the reasonable discretion provisions of the General PartnerArticle 13 hereof. The proceeds from the sale of a Defaulting Partner’s 's Interest under clauses (vd) and (vie) above shall be used to fund the Capital Contribution requested from the Defaulting Partner and/or set off or withheld from such Defaulting Partner in accordance with Section 3.6 4.6 hereof and any remaining excess amounts may be used for any appropriate Partnership purpose, which purpose shall be determined by returned to the Partnership in the sole discretion of the General Defaulting Partner. A Defaulting Partner shall remain liable for the payment of Capital Contributions as the same are called under this Agreement Section 4.5 except to the extent that such Capital Contribution is required after the fourth (4th) anniversary hereof and the Partnership may exercise the remedies set forth above for every subsequent Capital Default by the Defaulting Partner. Notwithstanding any other provision in this Agreement, upon a Capital Default by one or more Partners, the non-defaulting Partner(s) may, in its sole discretion, terminate the Investment Period and, immediately upon such termination, neither the General Partner nor any of its principals or Affiliates shall have any further duties or obligations under Article XIV of this Agreement. The rights and remedies referred to in this Section 4.5 shall be in addition to, and not in limitation of, any other rights available to the Partnership under this Agreement, the relevant Subscription Agreement or at law or in equity. The Partnership may proceed to collect from any Defaulting Partner any amount due from such Defaulting Partner as and when due, as well as all costs and expenses of collection incurred by the Partnership (including reasonable fees and disbursements of legal counsel). (b) Upon any Capital Default, the Partnership may deliver Capital Call Notices to the non-Defaulting Partners which shall call for a Capital Contribution from each non-Defaulting Partner equal to such non-Defaulting Partner’s pro rata share (based upon such non-Defaulting Partner’s Capital Commitment in relation to the aggregate Capital Commitments of all the non-Defaulting Partners) of the Capital Contribution which the Defaulting Partner(s) failed to make, provided that, no non-Defaulting Partner shall be required to make a Capital Contribution with respect to a Capital Default by a Defaulting Partner that is greater than twenty-five percent (25%) of such non-Defaulting Partner’s initial Capital Contribution with respect to such Capital Call. Each non-Defaulting Partner which shall have made an additional Capital Contribution as a result of a Capital Default by a Defaulting Partner shall have its Percentage Interest in the Partnership increased and the Defaulting Partner shall have its Percentage Interest in the Partnership decreased, so that each Partner’s Percentage Interest in the Partnership shall be based on the amount of Capital Contributions contributed by such Partner divided by the total Capital Contributions contributed to the Partnership by all Partners. A Capital Default by any Partner shall not relieve any other Partner of its obligation to make Capital Contributions to the Partnership. Any Capital Call made pursuant to this Section 3.5(b) shall not increase any non-Defaulting Partner’s Capital Commitment. Notwithstanding the foregoing, this Section 3.5(b) shall not be applied in a manner that is inconsistent with Section 3.5(a) hereof.