Common use of Default in Capital Commitment Clause in Contracts

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution to the Company or as a loan to the Defaulting Member (a “Default Loan”). If the Non-Defaulting Member elects to contribute some or all of the Defaulted amount as a capital contribution to the Company, then the Percentage Interests of KBS and the JV Member on Exhibit A shall be adjusted as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following the failure of the Defaulting Member to contribute its share of required capital to the Company. If the Non-Defaulting Member elects to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member and shall not increase the Capital Account balance or the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by the Non-Defaulting Member to the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out of any subsequent distributions of Net Cash or any other payment from the Company to which the Defaulting Member would otherwise be entitled (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreement), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in full. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%), compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section Sections 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) 3.02 and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution amount required to the Company or as a loan to be contributed by the Defaulting Member (a “Default Loan”)Member. If the Non-Defaulting Member elects to contribute some or all contributes capital on behalf of the Defaulted amount as a capital contribution to the CompanyDefaulting Member, then the Percentage Interests of KBS and the JV Member on Exhibit A Members shall be adjusted (effective on the date the Non-Defaulting Member makes such contribution) as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following in the failure manner described in the remainder of this Section. The Percentage Interest of the Defaulting Member to contribute its share shall automatically be reduced (effective as of required capital to the Company. If date the Non-Defaulting Member elects makes the Defaulting Member’s share the Additional Capital Contribution) by the number of percentage points determined by multiplying the Percentage Interest of the Defaulting Member immediately prior to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member’s making the entire Additional Capital Contribution by a fraction, the numerator of which is 1.5 times the amount of the Additional Capital Contribution made on behalf of the Defaulting Member and shall not increase the denominator of which is all of the Additional Capital Account balance or Contributions made by the Defaulting Member, and the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by Member making the Non-Defaulting Member to Additional Capital Contribution of the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out increased by an equal number of any subsequent distributions of Net Cash or any other payment from the Company to which percentage points. Additionally, if the Defaulting Member would otherwise is the JV Member, JV Member shall no longer receive the 10% promote set forth in Section 5.01(b)(iii) below and the 15% promote set forth in Section 5.01(c)(iii) below; however, GECC shall continue to be entitled to receive the Assigned Distributions as provided in Sections 5.01 (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreementb)(ii) and (c)(ii) or Sections 5.02(b)(ii) and (c)(ii), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in fullas applicable. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent THE PROVISIONS OF THIS SECTION 3.03, WHICH MAY CAUSE A REDUCTION IN THE PERCENTAGE INTEREST OF A DEFAULTING MEMBER (20%)AND A CORRESPONDING INCREASE TO THE PERCENTAGE INTEREST OF A NON-DEFAULTING MEMBER) IN THE EVENT THAT THE NON-DEFAULTING MEMBER FUNDS A DISPROPORTIONATE SHARE OF ADDITIONAL CAPITAL CONTRIBUTIONS, compounded quarterly (proIS NOT INTENDED AS A FORFEITURE OR PENALTY BUT AS COMPENSATION TO THE NON-rated for periods of less than one year)DEFAULTING MEMBER FOR THE ADDED RISK ASSUMED IN PROVIDING A DISPROPORTIONATE SHARE OF THE CAPITAL REQUIRED BY THE COMPANY. EACH MEMBER ACKNOWLEDGES THAT THE ADJUSTMENTS PROVIDED IN THIS SECTION 3.03 ARE FAIR COMPENSATION TO A NON-DEFAULTING MEMBER THAT FUNDS A DISPROPORTIONATE SHARE OF ADDITIONAL CAPITAL CONTRIBUTIONS AND A REASONABLE ESTIMATE OF THE DAMAGES CAUSED TO THE OTHER MEMBER BY THE FAILURE OF THE DEFAULTING MEMBER TO FUND ITS PROPORTIONATE SHARE OF ANY ADDITIONAL CAPITAL CONTRIBUTIONS, on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.PARTICULARLY IN LIGHT OF THE UNCERTAIN FINANCIAL CONDITION OF THE COMPANY THAT IS LIKELY TO EXIST IF THE COMPANY REQUIRES ADDITIONAL CAPITAL CONTRIBUTIONS AND THE NEED TO PROVIDE FOR A SIGNIFICANT RETURN ON INVESTMENT UNDER THOSE CIRCUMSTANCES. THE INDIVIDUAL EXECUTING THIS AGREEMENT ON BEHALF OF EACH MEMBER HAS SPECIFICALLY ACKNOWLEDGED THE PROVISIONS OF THIS SECTION 3.03 BY THE PARTY FOR WHOM HE/SHE IS ACTING. /s/ Authorized Signatory /s/ Authorized Signatory JV MEMBER KBS

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution to the Company or as a loan to the Defaulting Member (a “Default Loan”). If the Non-Defaulting Member elects to contribute some or all of the Defaulted amount Amount as a capital contribution to the Company, then the Percentage Interests of KBS and the JV Member on Exhibit A shall be adjusted as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following the failure of the Defaulting Member to contribute its share of required capital to the Company. If the Non-Defaulting Member elects to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member and shall not increase the Capital Account balance or the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by the Non-Defaulting Member to the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out of any subsequent distributions of Net Cash or any other payment from the Company to which the Defaulting Member would otherwise be entitled (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreement), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in full. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%), compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section Sections 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) 3.02 and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution amount required to the Company or as a loan to be contributed by the Defaulting Member (a “Default Loan”)Member. If the Non-Defaulting Member elects to contribute some or all contributes capital on behalf of the Defaulted amount as a capital contribution to the CompanyDefaulting Member, then the Percentage Interests of KBS and the JV Member on Exhibit A Members shall be adjusted (effective on the date the Non-Defaulting Member makes such contribution) as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following in the failure manner described in the remainder of this Section. The Percentage Interest of the Defaulting Member to contribute its share shall automatically be reduced (effective as of required capital to the Company. If date the Non-Defaulting Member elects makes the Defaulting Member’s share the Additional Capital Contribution) by the number of percentage points determined by multiplying the Percentage Interest of the Defaulting Member immediately prior to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member’s making the entire Additional Capital Contribution by a fraction, the numerator of which is 1.5 times the amount of the Additional Capital Contribution made on behalf of the Defaulting Member and shall not increase the denominator of which is all of the Additional Capital Account balance or Contributions made by the Defaulting Member, and the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by Member making the Non-Defaulting Member to Additional Capital Contribution of the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out increased by an equal number of any subsequent distributions of Net Cash or any other payment from the Company to which percentage points. Additionally, if the Defaulting Member would otherwise is the JV Member, JV Member shall no longer receive the 10% promote set forth in Section 5.01(b)(iii) below and the 15% promote set forth in Section 5.01(c)(iii) below; however, GECC shall continue to be entitled to receive the Assigned Distributions as provided in Sections 5.01 (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreementb)(ii) and (c)(ii) or Sections 5.02(b)(ii) and (c)(ii), and such payments shall be applied first to the payment as applicable. [remainder of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in fullpage left intentionally blank] THE PROVISIONS OF THIS SECTION 3.03, WHICH MAY CAUSE A REDUCTION IN THE PERCENTAGE INTEREST OF A DEFAULTING MEMBER (AND A CORRESPONDING INCREASE TO THE PERCENTAGE INTEREST OF A NON-DEFAULTING MEMBER) IN THE EVENT THAT THE NON-DEFAULTING MEMBER FUNDS A DISPROPORTIONATE SHARE OF ADDITIONAL CAPITAL CONTRIBUTIONS, IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT AS COMPENSATION TO THE NON-DEFAULTING MEMBER FOR THE ADDED RISK ASSUMED IN PROVIDING A DISPROPORTIONATE SHARE OF THE CAPITAL REQUIRED BY THE COMPANY. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%)EACH MEMBER ACKNOWLEDGES THAT THE ADJUSTMENTS PROVIDED IN THIS SECTION 3.03 ARE FAIR COMPENSATION TO A NON-DEFAULTING MEMBER THAT FUNDS A DISPROPORTIONATE SHARE OF ADDITIONAL CAPITAL CONTRIBUTIONS AND A REASONABLE ESTIMATE OF THE DAMAGES CAUSED TO THE OTHER MEMBER BY THE FAILURE OF THE DEFAULTING MEMBER TO FUND ITS PROPORTIONATE SHARE OF ANY ADDITIONAL CAPITAL CONTRIBUTIONS, compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.PARTICULARLY IN LIGHT OF THE UNCERTAIN FINANCIAL CONDITION OF THE COMPANY THAT IS LIKELY TO EXIST IF THE COMPANY REQUIRES ADDITIONAL CAPITAL CONTRIBUTIONS AND THE NEED TO PROVIDE FOR A SIGNIFICANT RETURN ON INVESTMENT UNDER THOSE CIRCUMSTANCES. THE INDIVIDUAL EXECUTING THIS AGREEMENT ON BEHALF OF EACH MEMBER HAS SPECIFICALLY ACKNOWLEDGED THE PROVISIONS OF THIS SECTION 3.03 BY THE PARTY FOR WHOM HE/SHE IS ACTING. /s/ Authorized Signatory /s/ Authorized Signatory JV MEMBER KBS

Default in Capital Commitment. If JV Member or KBS Member (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS Member or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution to the Company or as a loan to the Defaulting Member (a “Default Loan”). If the Non-Defaulting Member elects to contribute some or all of the Defaulted amount Amount as a capital contribution to the Company, then the Percentage Interests of KBS Member and the JV Member on Exhibit A shall be adjusted as if follows: (a) the amount which the Non-Defaulting Member contributed elects to contribute to fund the Defaulted Amount shall be deemed to be equal to 150% of the amount that the Non-Defaulting Member actually funds (the “Deemed Capital”); (b) the Non-Defaulting Member’s Percentage Interest shall be equal to the percentage equivalent of a fraction, the numerator of which is equal to the aggregate capital actually contributed by the Non-Defaulting Member following the failure Member, exclusive of the amount funded to replace the Defaulted Amount, plus the Deemed Capital, and the denominator of which is the total capital contributed by all Members, other than the amount contributed to replace the Defaulted Amount, plus the Deemed Capital; and (c) the Defaulting Member to contribute its share Member’s Percentage Interest shall equal 100% minus the recomputed Percentage Interest of required capital to the CompanyNon-Defaulting Member. If the Non-Defaulting Member elects to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member and shall not increase the Capital Account balance or the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by the Non-Defaulting Member to the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter definedas defined below) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out of any subsequent distributions of Net Cash or any other payment from the Company to which the Defaulting Member would otherwise be entitled (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreement), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in full. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%), compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be 19 contributed pursuant to Section 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution to the Company or as a loan to the Defaulting Member (a “Default Loan”). If the Non-Defaulting Member elects to contribute some or all of the Defaulted amount as a capital contribution to the Company, then the Percentage Interests of KBS and the JV Member on Exhibit A shall be adjusted as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following the failure of the Defaulting Member to contribute its share of required capital to the Company. If the Non-Defaulting Member elects to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member and shall not increase the Capital Account balance or the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by the Non-Defaulting Member to the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out of any subsequent distributions of Net Cash or any other payment from the Company to which the Defaulting Member would otherwise be entitled (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreement), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in full. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%), compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.. 3.03

Default in Capital Commitment. If JV Member or KBS (as applicable, the “Defaulting Member”) shall fail to contribute its share of any amounts required to be contributed pursuant to Section 3.01 or any approved additional capital contributions pursuant to Section 3.06 (the “Defaulted Amount”) and such failure shall continue for at least five (5) business days following notice to the Defaulting Member (provided that no notice or cure period shall apply to a Member’s failure to fund its share of the required capital to the Company for the Property Closing pursuant to the Purchase Agreement), KBS or JV Member, as applicable, applicable (the “Non-Defaulting Member(s)”) may, but shall not be obligated to, contribute some or all of the Defaulted Amount as a capital contribution to the Company or as a loan to the Defaulting Member (a “Default Loan”). If the Non-Defaulting Member elects to contribute some or all of the Defaulted amount Amount as a capital contribution to the Company, then the Percentage Interests of KBS and the JV Member on Exhibit A shall be adjusted as if the Non-Defaulting Member contributed 150% of the amount of capital actually contributed by the Non-Defaulting Member following the failure of the Defaulting Member to contribute its share of required capital to the Company. If the Non-Defaulting Member elects to provide the Default Loan, then it shall pay the proceeds directly to the Company. A Default Loan shall not be considered a capital contribution by the Non-Defaulting Member and shall not increase the Capital Account balance or the Percentage Interest of the Non-Defaulting Member, but instead shall be treated as a non-recourse loan by the Non-Defaulting Member to the Defaulting Member (and a capital contribution by the Defaulting Member) and shall bear interest at the lesser of (x) the Default Loan Rate (hereinafter defined) or (y) the maximum amount permitted by law. To the extent not repaid directly by the Defaulting Member, a Default Loan, together with any accrued and unpaid interest thereon, shall be repaid out of any subsequent distributions of Net Cash or any other payment from the Company to which the Defaulting Member would otherwise be entitled (but such distributions actually paid to the lending Members shall nonetheless constitute a distribution to the Defaulting Member for purposes of this Agreement), and such payments shall be applied first to the payment of accrued but unpaid interest on each such obligation and then to the payment of the outstanding principal until the Default Loan is paid in full. “Default Loan Rate” is defined as a cumulative annual rate equal to twenty percent (20%), compounded quarterly (pro-rated for periods of less than one year), on the daily average outstanding balance during each fiscal year of the Member’s aggregate unreturned Default Loan.