Common use of Defaulting Partners Clause in Contracts

Defaulting Partners. Subject to Section 6.7 (Excused Limited Partners), if any Partner fails to make all or any portion of any Capital Contribution or any other amount required to be funded by such Limited Partner pursuant to the provisions of this Agreement or any corresponding agreement or with respect to any other Fund Vehicle (including, but not limited to, the obligation to return and contribute distributions to the Fund pursuant to Section 14.7 (Clawback) or Section 16.3 (Limited Partner Giveback)), the General Partner shall notify such Partner in writing of such failure (a “Default Notice”). If such failure continues for [five (5)] Business Days after receipt by such Limited Partner of the Default Notice, then such Partner shall be designated by the General Partner as in “Default” under this Agreement (a “Defaulting Partner”) and shall thereafter be subject to the provisions of this Section 6.6 (Defaulting Partners). The General Partner may, if it determines this to be in the best interests of the Fund and the Non-Defaulting Partners, choose not to designate any Partner as a Defaulting Partner and may agree to waive or permit the cure of any Default by a Partner, subject to such conditions as the General Partner and the Defaulting Partner may agree upon, provided that any such decision not to designate any Affiliated Partner as a Defaulting Partner or to waive or permit the cure of any Default by an Affiliated Partner shall be subject to the prior written consent of the Advisory Committee. The General Partner shall inform the Limited Partners of the occurrence of any such Default and of any action taken by it with respect to any Defaulting Partner within [thirty (30)] days of the Defaulting Partner becoming a Defaulting Partner. A Limited Partner that fails to make all or any portion of any Capital Contribution or other payment required pursuant to this Agreement on the relevant Due Date shall pay or reimburse the Fund for any Damages resulting therefrom. In addition, any amounts that are not duly paid on the relevant Due Date shall accrue interest at a rate of [10]% per annum from the Due Date as specified in the relevant Default Notice until the date the Limited Partner makes the Capital Contribution. Any proceeds received by the Fund pursuant to this Section 6.6.3 and Section 6.6.4, including any amounts that would otherwise have been distributed to such Defaulting Partner, shall (i) first be applied to reimburse the Fund Parties for any related costs and expenses incurred due to such Defaulting Partner’s Default as determined by the General Partner and notified to the Defaulting Partner by the General Partner, and (ii) thereafter be distributed to the Limited Partners who are not Defaulting Partners (the “Non-Defaulting Partners”) pursuant to Article 14 (Distributions; Allocations) if attributable to a Portfolio Investment and otherwise in proportion to their Commitments (provided that a Non-Defaulting Partner shall not receive a distribution with respect to a Portfolio Investment with respect to which such Limited Partner is an Excused Limited Partner). Without prejudice to Section 6.6.3 above or Section 6.6.8 below, the General Partner in its sole discretion, on its own behalf or on behalf of the Fund, may (but shall not be obligated to) pursue and enforce any and all rights and remedies the Fund, the General Partner or the Fund Manager may have against such Defaulting Partner at law, in equity or pursuant to any other provision of this Agreement or otherwise with respect thereto, including taking any or all of the following actions in any order of priority (it being understood and agreed that the taking of one or more actions (including those set forth herein), or no action at all, by the General Partner with respect to a Defaulting Partner pursuant to this Section 6.6.4 shall in no way restrict or otherwise limit the General Partner’s ability to take one or more actions not prohibited by this Agreement, or no action at all, or in a different order of priority, with respect to any other Defaulting Partner pursuant to this Section 6.6.4): determine that the Defaulting Partner shall not be entitled to receive any or a portion of the distributions from the Fund (which amounts shall be forfeited by such Defaulting Partner) that would otherwise be made to the Defaulting Partner pursuant to this Agreement and may apply such withheld distributions to offset any defaulted amount owing by the Defaulting Partner to the Fund or any Alternative Vehicle; determine that the Defaulting Partner’s Interest may be sold for a purchase price equal to [50]% of the lesser of (i) such Defaulting Partner’s aggregate Capital Contributions, or (ii) the Value of such Defaulting Partner’s Interest at the time of such Default, in each case net of any amounts payable to the Fund pursuant to Section 6.6.3, provided that any such offer may, to a Person that is an Interested Person, only be made with the prior written consent of the Advisory Committee, and provided, further that such Defaulting Partner shall remain subject to Section 16.3 (Limited Partner Giveback) and upon such Transfer the Defaulting Partner shall otherwise cease to be a Limited Partner; determine that the Defaulting Partner must forfeit up to 100% of its Interest in the Fund without payment or other consideration therefor, in which case the Non-Defaulting Partners shall be entitled to acquire such forfeited portion of the Defaulting Partner’s Interest in the Fund divided among such Non-Defaulting Partners pro rata according to their respective Remaining Commitments with any adjustment that the General Partner may determine to be equitable in order to reflect any excuse pursuant to Section 6.7 (Excused Limited Partners). The sole consideration to the Defaulting Partner for each portion of such Defaulting Partner’s Interest reallocated to a Non-Defaulting Partner shall be the assumption by such Non-Defaulting Partner of the Defaulting Partner’s obligation to make both defaulted and future Capital Contributions pursuant to its Commitment that are commensurate with the portion of the Defaulting Partner’s Interest being reallocated to such Non-Defaulting Partner. The Defaulting Partner acknowledges that it shall not receive any payment for any Interest reallocated to Non-Defaulting Partners pursuant to this Section 6.6.4.3, including for any funded portion of its Commitment related thereto or such Defaulting Partner’s share of any profits not yet distributed, even though the purchased Interest may actually have significant positive value at the time of such reallocation or purchase; and determine to reduce any portion of such Defaulting Partner’s Commitment (which has not been assumed by another Partner) to the amount of the Capital Contributions (which have not been acquired) made by such Defaulting Partner (net of distributions pursuant to Article 14 (Distributions; Allocations)), and the aggregate Commitments of the Fund shall be commensurately reduced and any such determination shall be binding on such Defaulting Partner. Notwithstanding anything to the contrary provided herein, so long as a Defaulting Partner is a Partner in the Fund nothing contained in Section 6.6.4 shall affect the obligation of such Defaulting Partner to pay any such part of its Remaining Commitment to the Fund in accordance with the terms of this Agreement, and the Defaulting Partner shall remain fully liable for the fulfilment of its payment obligations hereunder, notwithstanding any other rights and remedies the Fund and the General Partner may have pursuant to applicable law. With respect to any amount (other than the Management Fee) that is in Default, the General Partner may require additional Drawdowns from the Non-Defaulting Partners in proportion to their Remaining Commitments; provided that no Limited Partner shall be obligated as a result thereof to contribute an additional amount in excess of the lesser of such Limited Partner’s Remaining Commitment and [50]% of the total Capital Contributions that such Limited Partner was originally required to make before the Drawdown of such additional amounts. A Defaulting Partner shall cease to have any voting or consent rights as a Limited Partner or with regard to its representative in the Advisory Committee (if applicable for such Defaulting Partner), and all acts, consents and decisions with respect to the Fund to be made by the Limited Partners or the Advisory Committee shall be calculated and made by the other Limited Partners without regard for the Commitment or (if applicable) the Advisory Committee member of such Defaulting Partner.

Defaulting Partners. Subject to Section 6.7 (Excused Limited Partners.), if any Partner fails to make all or any portion of any a Capital Contribution or any other amount required to be funded by such Limited Partner pursuant to the provisions of under this Agreement or any corresponding agreement or with respect to any other Fund Vehicle (including, but not limited to, including the obligation to return and contribute distributions to the Fund pursuant to Section 14.7 14.7(a) (Clawback.) or Section 16.3 (Limited Partner Giveback.)), the General Partner shall notify such Partner in writing of such failure (a “"Default Notice”"). If such failure continues for [five (5)Business Days] Business Days after receipt by such Limited Partner of the Default Notice, then such Partner shall be designated by the General Partner as in “"Default” " under this Agreement (a “"Defaulting Partner”") and shall thereafter will be subject to the provisions of this Section 6.6 (Defaulting Partners.). The General Partner may, if it determines this to be in the best interests of the Fund and the Non-Defaulting Partners, choose not to designate any Partner as a Defaulting Partner and may agree to waive or permit the cure of any Default by a Partner, subject to such conditions as the General Partner and the Defaulting Partner may agree upon, provided that any such decision not to designate any Affiliated Partner as a Defaulting Partner or to waive or permit the cure of any Default by an Affiliated Partner shall be is subject to the prior written consent of the LP Advisory Committee. The General Partner shall inform the Limited Partners of the occurrence of any such Default and of any action taken by it with respect to any Defaulting Partner within [thirty (30)] days of the Defaulting Partner becoming a Defaulting Partner. A Limited Partner that fails to make all or any portion of any Capital Contribution or other payment required pursuant to this Agreement on the relevant Due Date shall pay or reimburse the Fund for any Damages resulting therefromDamages. In addition, any amounts that are not duly paid on the relevant Due Date shall accrue interest at a rate of the Prime Rate plus [10]% 10%] per annum year from the Due Date as specified in the relevant Default Notice until the date the Limited Partner makes the Capital Contribution. Any proceeds received by the Fund pursuant to this Section 6.6.3 6.6(c) (Defaulting Partners.) and Section 6.6.46.6(d) (Defaulting Partners.), including any amounts that would otherwise have been distributed to such Defaulting Partner, shall (i) first be applied to reimburse the Fund Parties for any related costs and expenses incurred due to such Defaulting Partner’s 's Default as determined by the General Partner and notified to the Defaulting Partner by the General Partner, and (ii) thereafter be distributed to the Limited Partners who are not Defaulting Partners (the “"Non-Defaulting Partners”") pursuant to Article 14 (Distributions; Allocations) if attributable to a Portfolio Investment and otherwise in proportion to their Commitments (provided that a Non-Defaulting Partner shall not receive a distribution with respect to a Portfolio Investment with respect to which such Limited Partner it is an Excused Limited Partner). Without prejudice to limiting Section 6.6.3 6.6(c) (Defaulting Partners.) above or Section 6.6.8 6.6(h) (Defaulting Partners.) below, the General Partner in its sole discretionPartner, on its own behalf or on behalf of the Fund, may (but shall not be obligated to) pursue and enforce any and all rights and remedies the Fund, the General Partner or the Fund Manager may have against such Defaulting Partner at law, in equity or pursuant to any other provision of this Agreement or otherwise with respect theretootherwise, including taking any or all of the following actions in any order of priority (it being understood and agreed that the taking of one or more actions (including those set forth herein)actions, or no action at all, by the General Partner with respect to a Defaulting Partner pursuant to this Section 6.6.4 shall in no way 6.6(d) will not restrict or otherwise limit the General Partner’s 's ability to take one or more actions not prohibited by this Agreement, or no action at all, or in a different order of priority, with respect to any other Defaulting Partner pursuant to this Section 6.6.46.6(d): 81 determine that the Defaulting Partner shall will not be entitled to receive any or a portion of the distributions from the Fund (which amounts shall be forfeited by such Defaulting Partner) that would otherwise be made to the Defaulting Partner pursuant to this Agreement and may apply such withheld distributions to offset [or compensate]82 any defaulted amount owing by the Defaulting Partner to the Fund or any Alternative Vehicle; determine that the Defaulting Partner’s 's Interest may be sold for a purchase price equal to [50]% of the lesser of (i) such Defaulting Partner’s 's aggregate Capital Contributions, or (ii) the Value of such Defaulting Partner’s 's Interest at the time of such Default, in each case net of any amounts payable to the Fund pursuant to Section 6.6.36.6(c) (Defaulting Partners.), provided that any such offer may, to a Person that is an Interested Person, only be made with the prior written consent of the LP Advisory Committee, and provided, further that such Defaulting Partner shall will remain subject to Section 16.3 (Limited Partner Giveback.) and upon such Transfer the Defaulting Partner shall will otherwise cease to be a Limited Partner; determine that the Defaulting Partner must forfeit up to 100% of its Interest in the Fund without payment or other consideration therefor, in which case the Non-Defaulting Partners shall be entitled to acquire such forfeited portion of the Defaulting Partner’s Interest in the Fund divided among such Non-Defaulting Partners pro rata according to their respective Remaining Commitments with any adjustment that the General Partner may determine to be equitable in order to reflect any excuse pursuant to Section 6.7 (Excused Limited Partners). The sole consideration to the Defaulting Partner for each portion of such Defaulting Partner’s Interest reallocated to a Non-Defaulting Partner shall be the assumption by such Non-Defaulting Partner of the Defaulting Partner’s obligation to make both defaulted and future Capital Contributions pursuant to its Commitment that are commensurate with the portion of the Defaulting Partner’s Interest being reallocated to such Non-Defaulting Partner. The Defaulting Partner acknowledges that it shall not receive any payment for any Interest reallocated to Non-Defaulting Partners pursuant to this Section 6.6.4.3, including for any funded portion of its Commitment related thereto or such Defaulting Partner’s share of any profits not yet distributed, even though the purchased Interest may actually have significant positive value at the time of such reallocation or purchase; and determine to reduce any portion of such Defaulting Partner’s Commitment (which has not been assumed by another Partner) to the amount of the Capital Contributions (which have not been acquired) made by such Defaulting Partner (net of distributions pursuant to Article 14 (Distributions; Allocations)), and the aggregate Commitments of the Fund shall be commensurately reduced and any such determination shall be binding on such Defaulting Partner. Notwithstanding anything to the contrary provided herein, so long as a Defaulting Partner is a Partner in the Fund nothing contained in Section 6.6.4 shall affect the obligation of such Defaulting Partner to pay any such part of its Remaining Commitment to the Fund in accordance with the terms of this Agreement, and the Defaulting Partner shall remain fully liable for the fulfilment of its payment obligations hereunder, notwithstanding any other rights and remedies the Fund and the General Partner may have pursuant to applicable law. With respect to any amount (other than the Management Fee) that is in Default, the General Partner may require additional Drawdowns from the Non-Defaulting Partners in proportion to their Remaining Commitments; provided that no Limited Partner shall be obligated as a result thereof to contribute an additional amount in excess of the lesser of such Limited Partner’s Remaining Commitment and [50]% of the total Capital Contributions that such Limited Partner was originally required to make before the Drawdown of such additional amounts. A Defaulting Partner shall cease to have any voting or consent rights as a Limited Partner or with regard to its representative in the Advisory Committee (if applicable for such Defaulting Partner), and all acts, consents and decisions with respect to the Fund to be made by the Limited Partners or the Advisory Committee shall be calculated and made by the other Limited Partners without regard for the Commitment or (if applicable) the Advisory Committee member of such Defaulting Partner.83