Common use of Defaulting Members Clause in Contracts

Defaulting Members. (a) If at any time any Member fails to make all or any portion of any required Capital Contribution on the date specified therefor in accordance with Section 4.2 and such failure shall continue beyond ten (10) Business Days from the date such Capital Contribution is due (each, a “Payment Default”), the Member failing to pay such amounts shall be deemed to be a Defaulting Member under Article XVI. (b) In addition, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member (the “Non-Defaulting Member”) may, in its sole discretion and upon written notice to the Defaulting Member and the Company, contribute to the Company the Defaulting Member’s share of such requested amount, in which case the Non-Defaulting Member shall designate all of such amount made by the Non-Defaulting Member in respect of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, the Defaulting Member’s portion thereof) as a loan by the Non-Defaulting Member to the Company (a “Default Loan”). The making of a Default Loan by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting Member of its obligations pursuant to this Article IV. Each Default Loan (i) shall be a loan by the Non-Defaulting Member to the Company, (ii) shall bear interest at the Default Rate and (iii) shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of the Defaulting Member, except that the repayment of principal and interest shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not be credited with the amount of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, and the receipt of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, such Default Loan shall be structured in a manner that Investor reasonably determines is necessary to ensure such Default Loan’s treatment as a “real estate asset” for purposes of Section 856(c)(5) of the Code.

Defaulting Members. (a) If at any time any Member (a “Defaulting Member”) fails to make all or any portion of any required Capital Contribution on the date specified therefor in accordance with Section 4.2 and such failure shall continue beyond ten (10) Business Days from the date such Capital Contribution is full payment when due (each, a “Payment Default”) of any portion of its Capital Commitment or any other payment required under this Agreement or such Member’s Subscription Agreement for its Units in the Company (the amount of such defaulted payments in the aggregate, including all accrued and unpaid interest thereon, and together with any other unpaid amounts that are due and owing by such Member thereunder, the “Defaulted Amounts”) and such Payment Default is not cured within ten (10) business days after written notice to such Defaulting Member from the Managing Member with respect to such Payment Default, the Managing Member in its sole discretion, on its own behalf or on behalf of the Company, may (but shall not be obligated to) pursue and enforce any and all rights and remedies the Company and/or the Managing Member may have against such Defaulting Member at law, in equity or pursuant to any other provision of this Agreement or otherwise with respect thereto, including taking any one or more of the following actions in any order of priority: (i) In addition to all Defaulted Amounts owed by the Defaulting Member, the Company may (A) accrue and collect interest computed on all Defaulted Amounts and any amount due to the Company or the Managing Member pursuant to this Section 14.3 at an annual compounded rate of ten percentage (10%) points per annum (or if limited by applicable law, the highest rate per annum permitted by applicable law), and/or (B) require reimbursement from the Defaulting Member for all out-of-pocket expenses (including for attorneys’ fees) incurred by the Company and the Managing Member in connection with the collection and other efforts in respect of the Defaulted Amounts (which payment of such interest and expense reimbursement shall not be treated as a Capital Contribution by the Defaulting Member). The Managing Member may require the payment of such interest and expense reimbursement whether or not it exercises any rights or remedies. (ii) So long as any Defaulted Amounts remain unpaid, the Company may withhold all distributions (or portions thereof) that would otherwise be made to the Defaulting Member pursuant to this Agreement and apply such withheld distributions to offset any Defaulted Amounts owing by the Defaulting Member to the Company or the Managing Member under this Agreement or any other agreement. (iii) The Managing Member may assist the Defaulting Member in finding a buyer for all or any part of the Defaulting Member’s Units in the Company; provided that the Managing Member shall not have any obligation to contact any particular Member or other Person with regard to such sale and shall have no liability to any Member, including the Defaulting Member, if no such buyer is found. (iv) The Company and the Managing Member may pursue a lawsuit to collect the Defaulted Amounts due to the Company and the Managing Member including amounts owed pursuant to Section 14.3(a)(i) and/or 14.3(a)(ix). The Managing Member may require the payment of such interest and expense reimbursement whether or not it exercises any rights or remedies. (v) Subject to Section 14.3(a)(vii), the Managing Member failing may cause the Defaulting Member to pay forfeit up to fifty percent (50%) of its Units in the Company without payment or other consideration therefor, and the Managing Member shall offer to transfer, for no consideration, such amounts forfeited Units of the Defaulting Member to the other Members (other than any Defaulting Members) pro rata according to their respective Capital Commitments or the forfeited Units may be cancelled. The Managing Member shall provide a notice to each Member (other than Defaulting Members) setting forth the amount of the forfeited Units of the Defaulting Member offered to such Member. In the event that any Member does not elect to accept its pro rata share of the forfeited Units of a Defaulting Member, such forfeited Units will be offered again by the Managing Member according to the provisions of this Section 14.3(a)(v) as if such forfeited Units had not previously been offered until either all of such Units are acquired or no Member wishes to accept any further portion. (vi) Subject to Section 14.3(a)(vii), to the extent a Defaulting Member’s Units are not forfeited and reallocated pursuant to Section 14.3(a)(v) (including the remaining portion of such Defaulting Member’s Units not subject to forfeiture), the Managing Member may offer to the other Members (other than any Defaulting Members) the portion of the Defaulting Member’s Units that are not forfeited and reallocated pursuant to Section 14.3(a)(v) at the applicable NAV per Unit on the effective date such Defaulting Member’s interest is sold. If the remaining portion of the Defaulting Member’s Units are not purchased in the manner set forth herein, the Managing Member in its sole discretion may offer the remaining Units to a third party or parties on terms not more favorable than originally offered to the Members, in which case such third party or parties shall, as a condition of purchasing such interest, become a party to this Agreement. (vii) The Managing Member may reduce (and such reduction shall be deemed to be effective as of the actual date of the Payment Default, without giving effect to any applicable cure period, or as of such later date as is determined by the Managing Member) any portion of such Defaulting Member’s Capital Commitment (which has not been assumed by another Partner or third party) to the amount of the Capital Contributions (which have not been acquired by another Partner or third party) made by such Defaulting Member and the aggregate Capital Commitments of the Company shall be commensurately reduced; provided that no such reduction in a Defaulting Member under Article XVIMember’s Capital Contribution shall be effective as against a Lender that has advanced funds to the Company on account of such Capital Commitment. (b) No consent of any Member shall be required as a condition precedent to any Transfer of a Defaulting Member’s Units, or the admission of a transferee as a substitute Member with respect to such Units, pursuant to this Section 14.3. (c) The Managing Member shall handle the procedures of making the offers set forth in this Section 14.3 and shall in its discretion set time limits for acceptance. In connection with any purchase of Units pursuant to this Section 14.3, upon the Managing Member’s request, the Defaulting Member shall make customary representations and warranties to each purchaser and will execute a customary transfer agreement. (d) The failure of any Member to fulfill an obligation hereunder shall not relieve any other Member of any of its obligations under this Agreement. (e) Notwithstanding the notice requirements of Section 4.2, additional Capital Contributions may be called by the Managing Member on five (5) business days’ notice following a Member failing to fund any amount due pursuant to a Capital Call Notice. In addition, without limiting the Managing Member is authorized to apply amounts that would otherwise be distributed to a Member to satisfy such Member’s obligation to make a Capital Contribution pursuant to Section 4.2 or any other remedies that may payment required under this Agreement. Such amounts applied shall be available pursuant deemed distributed to Article XVI, upon the occurrence of any Payment Default, the non-defaulting such Member (the “Non-Defaulting Member”) may, in its sole discretion and upon written notice to the Defaulting Member and the Company, contribute to by the Company the Defaulting Member’s share of and then contributed by such requested amount, in which case the Non-Defaulting Member shall designate all of such amount made by the Non-Defaulting Member in respect of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, the Defaulting Member’s portion thereof) as a loan by the Non-Defaulting Member to the Company (a “Default Loan”). The making of a Default Loan as Capital Contributions or paid by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting Member of its obligations pursuant to this Article IV. Each Default Loan (i) shall be a loan by the Non-Defaulting Member such Partner to the Company, as applicable. (iif) shall bear interest at Notwithstanding anything in this Agreement to the Default Rate contrary and (iii) shall be repaid on unless otherwise determined by the Managing Member in its sole discretion, during any period of time that a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of the Member is a Defaulting Member, except that the repayment of principal and interest shall be a Company obligation). The Capital Account of the Non-such Defaulting Member shall not be credited with entitled to receive any of the amount reports, or information contained therein, or any other information regarding the Company or any investment, other than (i) a statement of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-such Defaulting Member’s closing Capital AccountAccount balance as and when provided by the Managing Member to the other Members, (ii) the Defaulting Member’s Schedule K-1s, as and when provided by the Managing Member to the other Members, and (iii) any additional reports and information that are required by applicable law. (g) Each Member hereby acknowledges that certain provisions of this Agreement (including this Section 14.3) provide for specific consequences in the receipt event of a breach of this Agreement by a Partner. Each Partner hereby agrees that the default provisions of this Agreement are fair and reasonable and, in light of the difficulty of determining actual damages, represent a prior agreement among the Partners as to appropriate liquidated damages. Without limiting the general effect of the preceding sentence, the Partners hereby specifically acknowledge and agree that the enforceability of this Section 14.3 is essential to the stability of the Company as an organization and to the ability of the Company to effectively serve its purpose and conduct its business operations. (h) Each Member hereby specifically agrees that, in the event such amounts Member becomes a Defaulting Member, regardless of the reason therefor, such Member shall not be considered for purposes of determining entitled to claim that the Internal Rate of Return Company or any of the Non-Defaulting Member hereunder. In other Members are precluded, on the event Investor makes a Default Loanbasis of any fiduciary or other duty arising in respect of such Member’s status as such or other equitable claim or theory, such Default Loan shall be structured in a manner that Investor reasonably determines is necessary to ensure such Default Loan’s treatment as a “real estate asset” for purposes of Section 856(c)(5) from seeking any of the Codepenalties or other remedies permitted under this Agreement or applicable law.

Defaulting Members. (a) If at any time any In the event a Member fails to make all or any portion of any required Capital Contribution on the date specified therefor in accordance with Section 4.2 and is a Defaulting Member, such failure shall continue beyond ten (10) Business Days from the date such Capital Contribution is due (each, a “Payment Default”), the Member failing to pay such amounts shall be deemed to be a have offered all of his or its Class A Units for purchase by the Company at the Defaulting Member under Article XVI. Purchase Price, and the Company shall have the right (bbut not the obligation) In additionto purchase all and only all of such Units at the Defaulting Member Purchase Price. If the Company wished to exercise this purchase right, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member (the “Non-Defaulting Member”) may, in its sole discretion and upon it must do so by giving written notice to the Defaulting Member (with a copy thereof to each of the other Founding Members) within thirty (30) days after the final, non-appealable judgment of a court or an arbitrator that finds such Member to be a Defaulting Member (the “Company Election” and the Company, contribute “Company Election Period”) of its election to purchase all of the Company Class A Units of the Defaulting Member’s share of such requested amount, in which case . If the Non-Defaulting Member shall designate Company does not timely elect to purchase all of such amount made by the Non-Defaulting Member in respect of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, the Defaulting Member’s portion thereof) as a loan by the Non-Defaulting Member to the Company (a “Default Loan”). The making of a Default Loan by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting Member of its obligations pursuant to this Article IV. Each Default Loan (i) shall be a loan by the Non-Defaulting Member to the Company, (ii) shall bear interest at the Default Rate and (iii) shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility Class A Units of the Defaulting Member, except that the repayment Company shall have no right to purchase any of principal such Units. Upon a timely election, (i) the Company and interest shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not determine the Defaulting Member Purchase Price or, in the absence of agreement, the Defaulting Member Purchase Price shall be credited with determined by arbitration pursuant to Section 11.9, which shall be payable, less any Permitted Offset and without interest, in a single installment on the amount earlier of any Capital Contribution designated as a Default Loan. The repayment (a) the seventh anniversary of the date of the final, non-appealable judgment of a Default Loan court or an arbitrator that finds such Member to be a Defaulting Member and payment (b) the date the Company sells all or reimbursement substantially all of any interest its assets (or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, and the receipt otherwise disposes of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, such Default Loan shall be structured assets in a manner that Investor reasonably determines is necessary results in the ▇▇▇▇▇▇ Related Parties no long Controlling them) or the date an equity sale occurs that results in a Person (other than the ▇▇▇▇▇▇ Related Parties) Controlling the Company, and (ii) the Company shall execute and deliver to ensure such Default Loan’s treatment the Defaulting Member the Promissory Note attached hereto as a “real estate asset” for purposes of Section 856(c)(5) of the Code.Exhibit B.

Defaulting Members. (a) If at any time Upon the failure of any Member fails (a “Defaulting Member”) to make all or pay in full any portion of any required such Member’s Capital Contribution on the date specified therefor in accordance with Section 4.2 and such failure shall continue beyond ten (10) Business Days from the date such Capital Contribution is Commitment when due (each, a the “Payment DefaultDefault Date”), the any Member failing to pay such amounts shall be deemed to be other than a Defaulting Member under Article XVI. (b) In addition, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member (the a “Non-Defaulting Member”) (or the Administrative Agent acting on behalf of the Company upon direction by the Non-Defaulting Member) may, in its sole discretion discretion, may elect to use its senior credit facility or other loan facility to fund a Defaulting Member’s unfunded Additional Capital Contribution. Any other Member shall also be permitted (but not obligated) to fund such Defaulting Member’s unfunded Additional Capital Contribution (the “Funding Member”) and upon written notice to receive interest thereon payable by the Defaulting Member and pursuant to Section 3.2(b)(i). (b) In the Company, contribute to the Company event that the Defaulting Member’s share failure to fund its Additional Capital Contribution remains unremedied for a period of five (5) Business Days after the required payment date pursuant to Section 3.1(a), such requested amountDefaulting Member shall be charged interest of ten percent (10%) per annum (or, if lower, the highest rate permissible by applicable law) on the amount of all Additional Capital Contributions on which it has defaulted (the “Defaulted Amount”), with such interest due to the Company or, in which case the event the Non-Defaulting Member shall designate all of funds such amount made by Defaulting Member’s unfunded Additional Capital Contribution pursuant to Section 3.2(a) to the Non-Defaulting Member in respect accordance with 3.2(a) otherwise. Such interest shall accrue from the Default Date until the date of payment or satisfaction in full of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, Defaulted Amount by the Defaulting Member’s portion thereof) as a loan by the Non-Defaulting Member . All distributions made with respect to the Company (a “Default Loan”). The making of a Default Loan membership interests held by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting (i) first be applied to any interest owed to any Funding Member of its obligations pursuant to this Article IV. Each Default Loan (i) shall be a loan by the Non-Defaulting Member to the CompanySection 3.2(b), (ii) shall bear interest at the Default Rate and then applied to any Defaulted Amount paid by any Funding Member, (iii) then to any interest owed to the Company pursuant to this Section 3.2(b), (iv) then to repay any indebtedness used to fund such Defaulting Member’s unfunded Additional Capital Contributions and (v) finally any remainder shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of paid over to the Defaulting Member. (c) Following any Default Date and until such Defaulting Member cures such default, except the Company shall not make new Investments; provided, that the repayment Company may make Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet or letter of principal and interest shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not be credited with the amount of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment intent, or reimbursement of any interest definitive legal documents under which less than all advances have been made) on or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, and the receipt of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, before such Default Loan shall be structured in a manner that Investor reasonably determines is necessary to ensure such Default Loan’s treatment as a “real estate asset” for purposes of Section 856(c)(5) of the CodeDate.

Defaulting Members. (a) If at any time any Class A Member fails to make all or any portion timely contribute its full Initial Class A Funding Percentage of any a Capital Call that such Class A Member is required Capital Contribution on the date specified therefor in accordance with to contribute pursuant to Section 4.2 4.1(e)(i) and such failure shall continue beyond ten (10) Business Days from the date at least one other Class A Member timely contributes its full Class A Sharing Percentage of such Capital Contribution is due (each, a “Payment Default”), the Member failing to pay such amounts shall be deemed to be a Defaulting Member under Article XVI. (b) In addition, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member Call amount (the “Non-Defaulting Member”), then the Company or a Non-Defaulting Member shall deliver a written notice of default (a “Default Notice”) mayto the Defaulting Member setting forth the amount such Defaulting Member failed to timely fund. If the Defaulting Member’s full Initial Class A Funding Percentage of such Capital Call amount is not received by the Company from such Class A Member within ten (10) Business Days after delivery of the Default Notice (the “Default Cure Period”), then: (i) such Class A Member shall be deemed a “Defaulting Member” and if the Defaulting Member is Carbon, then Supermajority of the Voting Power shall not require the affirmative vote of a Carbon Designee; if the Defaulting Member is Yorktown, then Supermajority of the Voting Power shall not require the affirmative vote of a Yorktown Designee; and if the Defaulting Member is Old Ironsides, then a Majority of the Voting Power shall not require the affirmative vote of an Old Ironsides Designee; (ii) the Defaulting Member shall not be entitled to participate in any future Capital Calls pursuant to Section 4.1 or as a Preemptive Rights Member pursuant to Section 4.4; (iii) each Non-Defaulting Member shall have the option, exercisable in its sole and absolute discretion to either (A) fund all or a portion of the Defaulting Member’s Unfunded Amount and upon to treat such funding of the Unfunded Amount as either an additional Capital Contribution, subject to Section 4.8 (an “Optional Contribution”), or (B) by delivery of written notice to the Company and the Defaulting Member and within twenty (20) Business Days after the Company, contribute date the Default Notice is delivered to the Company the Defaulting Member’s share of such requested amount, in which case require the Company to return to the Non-Defaulting Member shall designate all of such amount made by the Non-Defaulting Member in respect up to 100% of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, the Defaulting Member’s portion thereof) as a loan amount contributed by the Non-Defaulting Member to the Company in connection with such Capital Call; (a “Default Loan”). The making of a Default Loan by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting Member of its obligations pursuant to this Article IV. Each Default Loan (iiv) shall be a loan by the Non-Defaulting Member to the Company, (iiMember(s) shall bear interest at the Default Rate and (iii) shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of may fund the Defaulting Member, except that ’s Initial Class A Funding Percentage of all subsequent Capital Call amounts as Optional Contributions until the repayment of principal and interest shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not be credited with the amount of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, Commitment has been fully funded; and the receipt of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, such Default Loan shall be structured in a manner that Investor reasonably determines is necessary to ensure such Default Loan’s treatment as a “real estate assetClass A Sharing Percentage” for purposes of Section 856(c)(54.1(i) and Section 4.4 shall be calculated without giving effect to Units held by the Defaulting Member; and (v) if more than one Non-Defaulting Member elects to fund the Unfunded Amount or the Defaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts, then each Non-Defaulting Member so electing shall be entitled to fund its portion of such Unfunded Amount or the CodeDefaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts based on the relative Class A Sharing Percentage of each such Non-Defaulting Member, unless otherwise agreed to among such Non-Defaulting Members.

Defaulting Members. (a) If at any time any Member fails to make all contribute the full amount of its Additional Contributions required to be made pursuant to this Section 2 on or any portion of any required Capital Contribution on prior to the date (the "Due Date") specified therefor in accordance with Section 4.2 and the Call Notice (such failure shall continue beyond ten (10) Business Days from the date such Capital Contribution is due (eachMember, a “Payment Default”"Defaulting Member"), then, in addition to such Member losing its voting rights under this Agreement, as the Member failing to pay such amounts shall be deemed to be exclusive remedies of the Company and the other Members (each a Defaulting Member under Article XVI. (b) In addition, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member (the “"Non-Defaulting Member”) may"), in its sole discretion and upon written notice to the Defaulting Member and the Company, contribute to the Company the Defaulting Member’s share of such requested amount, in which case the Non-Defaulting Member shall designate all have the following remedies, exercisable by notice from the Non-Defaulting Member to the Defaulting Member: (i) to cause the Company to ▇▇▇ the Defaulting Member for damages, and (ii) either: (A) to elect to lend (or to cause the Non-Defaulting Member's affiliates to lend), to the Defaulting Member or to the Company, as determined in the sole discretion of the Non-Defaulting Member, the amount of such Additional Contribution that was not made timely by the Defaulting Member, or (B) to elect to contribute the amount of such Additional Contribution that was not made timely by the Defaulting Member. Upon a Member becoming a Defaulting Member and the Non-Defaulting Member timely contributing both (x) the Additional Contribution required to be made by the Non-Defaulting Member in respect and (y) the portion of the related request therefor (including both Additional Contribution that was not made timely by the Defaulting Member, Shares of the Defaulting Member shall be deemed immediately redeemed by the Company and reissued to the Defaulting Member and the Non-Defaulting Member(s) in the proportion that each Member’s and, if it elects 's Invested Capital (as hereinafter defined) bears to contribute such amount, the Defaulting Member’s portion thereof) as a loan by total Invested Capital of all Members. Upon the failure of the Non-Defaulting Member to elect which of the remedies specified in clause (ii)(A) or (ii)(B) of this Section 2(b) has been selected, by written notice to the Company (a “Default Loan”). The making of a Default Loan by a Non-Defaulting Member shall not constitute a cure of the breach by and the Defaulting Member given within thirty (30) days after funding the share of its obligations pursuant to this Article IV. Each Default Loan (i) shall be a loan the Additional Contribution not made by the Non-Defaulting Member to the Company, (ii) shall bear interest at the Default Rate and (iii) shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of the Defaulting Member, the remedy described in such clause (ii)(B) shall be deemed to have been selected. The remedies described in clauses (i) and (ii) of this Section 2 shall be cumulative, and all or any of them may be elected and apply simultaneously, except that the repayment remedies described in clauses (ii)(A) and (ii)(B) of principal and interest this Section 2(b) shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not be credited mutually exclusive with the amount of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, and the receipt of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, such Default Loan shall be structured in a manner that Investor reasonably determines is necessary respect to ensure such Default Loan’s treatment as a “real estate asset” for purposes of Section 856(c)(5) of the Codeeach Call Notice.

Defaulting Members. (a) If at any time any Class A Member fails to make all or any portion timely contribute its full Initial Class A Funding Percentage of any a Capital Call that such Class A Member is required Capital Contribution on the date specified therefor in accordance with to contribute pursuant to Section 4.2 4.1(e)(i) and such failure shall continue beyond ten (10) Business Days from the date at least one other Class A Member timely contributes its full Class A Sharing Percentage of such Capital Contribution is due (each, a “Payment Default”), the Member failing to pay such amounts shall be deemed to be a Defaulting Member under Article XVI. (b) In addition, without limiting any other remedies that may be available pursuant to Article XVI, upon the occurrence of any Payment Default, the non-defaulting Member Call amount (the “Non-Defaulting Member”), then the Company or a Non-Defaulting Member shall deliver a written notice of default (a “Default Notice”) mayto the Defaulting Member setting forth the amount such Defaulting Member failed to timely fund. If the Defaulting Member’s full Initial Class A Funding Percentage of such Capital Call amount is not received by the Company from such Class A Member within ten (10) Business Days after delivery of the Default Notice (the “Default Cure Period”), then: (a) such Class A Member shall be deemed a “Defaulting Member” and (i) if the Defaulting Member is Carbon, then Supermajority of the Voting Power shall not require the affirmative vote of a Carbon Designee; and (ii) if the Defaulting Member is Old Ironsides, then a Majority of the Voting Power shall not require the affirmative vote of an Old Ironsides Designee; (b) the Defaulting Member shall not be entitled to participate in any future Capital Calls pursuant to Section 4.1 or as a Preemptive Rights Member pursuant to Section 4.4; (c) each Non-Defaulting Member shall have the option, exercisable in its sole and absolute discretion to either (A) fund all or a portion of the Defaulting Member’s Unfunded Amount and upon to treat such funding of the Unfunded Amount as either an additional Capital Contribution, subject to Section 4.7 (an “Optional Contribution”), or (B) by delivery of written notice to the Company and the Defaulting Member and within twenty (20) Business Days after the Company, contribute date the Default Notice is delivered to the Company the Defaulting Member’s share of such requested amount, in which case require the Company to return to the Non-Defaulting Member shall designate all of such amount made by the Non-Defaulting Member in respect up to 100% of the related request therefor (including both the Non-Defaulting Member’s and, if it elects to contribute such amount, the Defaulting Member’s portion thereof) as a loan amount contributed by the Non-Defaulting Member to the Company in connection with such Capital Call; (a “Default Loan”). The making of a Default Loan by a Non-Defaulting Member shall not constitute a cure of the breach by the Defaulting Member of its obligations pursuant to this Article IV. Each Default Loan (id) shall be a loan by the Non-Defaulting Member to the Company, (iiMember(s) shall bear interest at the Default Rate and (iii) shall be repaid on a priority basis from Operating Cash and Capital Proceeds (with all costs associated with the Default Loan being the responsibility of may fund the Defaulting Member, except that ’s Initial Class A Funding Percentage of all subsequent Capital Call amounts as Optional Contributions until the repayment of principal and interest shall be a Company obligation). The Capital Account of the Non-Defaulting Member shall not be credited with the amount of any Capital Contribution designated as a Default Loan. The repayment of a Default Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Capital Contributions, shall not reduce the Non-Defaulting Member’s Capital Account, Commitment has been fully funded; and the receipt of such amounts shall not be considered for purposes of determining the Internal Rate of Return of the Non-Defaulting Member hereunder. In the event Investor makes a Default Loan, such Default Loan shall be structured in a manner that Investor reasonably determines is necessary to ensure such Default Loan’s treatment as a “real estate assetClass A Sharing Percentage” for purposes of Section 856(c)(54.1(i) and Section 4.4 shall be calculated without giving effect to Units held by the Defaulting Member; and (e) if more than one Non-Defaulting Member elects to fund the Unfunded Amount or the Defaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts, then each Non-Defaulting Member so electing shall be entitled to fund its portion of such Unfunded Amount or the CodeDefaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts based on the relative Class A Sharing Percentage of each such Non-Defaulting Member, unless otherwise agreed to among such Non-Defaulting Members.