Common use of Default Action Clause in Contracts

Default Action. If any Member or its Affiliate commits any Default Action (as defined below), then in addition to any other legal or equitable remedy available to the other Member (or pursuant to the terms of this Agreement), such other Member shall be entitled to recover from the breaching Member its actual damages, including reasonable attorney’s fees (but specifically excluding special, consequential, punitive or exemplary damages) sustained by the non-breaching Member as a result of such Default Action, except to the extent of damages attributable to a coincident Default Action of such other Member and/or its Affiliate. The following actions are collectively referred to as “Default Actions”: (i) Bankruptcy of a Member; (ii) fraud, willful misconduct or gross negligence on the part of a Member in connection with the business or affairs of the Company; (iii) willful misappropriation of Company funds; (iv) the material breach or violation of this Agreement (but expressly excluding a Member’s failure to make an Additional Capital Contribution); (v) the transfer of a Membership Interest or a direct or indirect ownership interest in the Manager in violation of this Agreement or, in the case of the TCR Member, the occurrence of a TCR Change of Control in violation of this Agreement; (vi) any action or omission that, to the extent caused solely by a Member’s actions or omissions, results in Lender asserting liability under any non-recourse carveout guaranty for “bad boy” acts or omissions or Bankruptcy-related events (but expressly excluding therefrom, any liquidity based non-recourse carveout); (viii) withdrawal of a Member in violation of this Agreement; and (ix) the Bankruptcy of a Member or any Affiliate of a Member (including, in the case of the TCR Member, the General Contractor, the Developer or one or more TCR Guarantors) that causes an event of default under the Loan.

Default Action. If any Member or its Affiliate commits any Default Action (as defined below), then in addition to any other legal or equitable remedy available to the other Member (or pursuant to the terms of this Agreement), such other Member shall be entitled to recover from the breaching Member its actual damages, including reasonable attorney’s fees (but specifically excluding special, consequential, punitive or exemplary damages) sustained by the non-breaching Member as a result of such Default Action, except to the extent of damages attributable to a coincident Default Action of such other Member and/or its Affiliate. The following actions are collectively referred to as “Default Actions”: (i) Bankruptcy of a Member; (ii) fraud, willful misconduct or gross negligence on the part of a Member in connection with the business or affairs of the Company; (iii) willful misappropriation of Company funds; (iv) the material breach or violation of this Agreement (but expressly excluding a Member’s failure to make an Additional Capital Contribution); (v) the transfer of a Membership Interest or a direct or indirect ownership interest in the Manager in violation of this Agreement or, in the case of the TCR Member, the occurrence of a TCR Change of Control in violation of this Agreement; (vi) any action or omission that, to the extent caused solely by a Member’s actions or omissions, results in Lender asserting liability under any non-recourse carveout guaranty for “bad boy” acts or omissions or Bankruptcy-related events (but expressly excluding therefrom, any liquidity based non-recourse carveout); (viii) withdrawal of a Member in violation of this the Agreement; and (ix) the Bankruptcy of a Member or any Affiliate of a Member (including, in the case of the TCR Member, the General Contractor, the Developer or one or more TCR Guarantors) that causes an event of default under the Loan.