Common use of Company Loan Clause in Contracts

Company Loan. If any Member does not fund a Required Additional Capital Contribution in accordance with Section 3.2(a) or a Requested Additional Capital Contribution in accordance with Section 3.2(b), then, provided the Non-Defaulting Member has funded its Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, (i) the entire amount of the Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, made by the Non-Defaulting Member shall be deemed a loan to the Company (such loan is referred to herein as a “Non-Defaulting Member Company Loan”), and (ii) the Non-Defaulting Member (which shall expressly not include any Unadmitted Assignees) shall have the right (but not the obligation) to make a loan to the Company in the amount of the Defaulting Member’s entire Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be (the amount of the Defaulting Member’s failed Capital Contribution is referred to herein as the “Failed Contribution Amount” and any loan made to the Company by the Non-Defaulting Member with respect to such Failed Contribution Amount is referred to herein as a “Failed Contribution Company Loan” and the Failed Contribution Company Loans together with the Non-Defaulting Member Company Loans are referred to herein as the “Company Loans”), in each case with recourse solely to the Company and its assets. Any Company Loan shall be expressly subordinated to all Member Loans and to any senior credit facility of the Company to the extent required by such senior credit facility, and the Defaulting Member shall bear all reasonable and customary costs and expenses related thereto and to the negotiation and documentation thereof, including reasonable fees and expenses of the counsel and accountants of the Company and the Member making such Company Loan. Any Company Loan shall not be treated as a Capital Contribution by the Member making such Company Loan and shall not increase the Capital Account of such Member or result in any adjustment to the number of Units held by any Member unless and until such Company Loan (or portion thereof) is converted to a Capital Contribution in accordance with Section 3.3(b) or 3.3(c). Subject to the earlier conversion of a Company Loan into a Capital Contribution pursuant to Section 3.3(c), each Company Loan shall have an initial term ending on the applicable First Anniversary Date (and no principal or interest shall be prepayable or paid with respect thereto during such initial period other than in connection with the conversion thereof to a Capital Contribution pursuant to Section 3.3(c) or as otherwise consented to by both Members), or longer if determined by the Board of Managers and consented to by the Non-Defaulting Member, and shall bear interest at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month). All payments on all Company Loans shall be applied first to accrued interest on all Company Loans, then to unpaid principal. With respect to Company Loans outstanding 12 months or more, (i) payments on account of interest on such Company Loans shall be made on a “last in, first out” basis so that the accrued interest on the most recent Company Loan is paid first and (ii) principal payments on such Company Loans shall be made on a “last in, first out” basis so that the most recent Company Loan is repaid first. Company Loans shall be repaid as quickly as practicable taking into account any restrictions under any then-existing senior credit facility. Notwithstanding anything to the contrary herein, no Member Loan shall constitute a Company Loan.

Company Loan. If Subject to Section 6.3.5, if at any Member does time on or after the date the Members have contributed to the Company their respective Maximum Contribution Amounts pursuant to Section 3.2, additional funds are required to pay any Expenditure incurred pursuant to the Budget and Operating Plan (“Loan Needs”), and the Executive Committee elects to fund such Loan Needs by means of loans from the Members, the Executive Committee may, but shall not fund a Required Additional Capital Contribution be required to, request all Members, within fifteen (15) business days of such written request to all Members, to lend to the Company (pro rata in accordance with Section 3.2(a) the Percentage Interests of all Members, or a Requested Additional Capital Contribution if any Member refuses to make such loan within such time period, pro rata in accordance with Section 3.2(b), then, provided the Non-Defaulting Member has funded its Required Additional Capital Contribution Percentage Interests of those Members making such loan or Requested Additional Capital Contribution, in such other manner as the case advancing Members may be, (iagree) an amount of money up to but not exceeding the entire amount of the Required Additional Capital Contribution or Requested Additional Capital Contributionsuch Loan Needs, as the case may be, made by the Non-Defaulting Member which loan shall be deemed to be a full recourse loan to the Company (such loan is referred to herein as a “Non-Defaulting Member Company Loan”) (but the Members shall have no liability therefor), and (ii) the Non-Defaulting Member (which shall expressly not include any Unadmitted Assignees) shall have the right (but not the obligation) to make be considered a loan to the Company in the amount of the Defaulting Member’s entire Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be (the amount of the Defaulting Member’s failed Capital Contribution is referred to herein as the “Failed Contribution Amount” and any loan made to the Company by the Non-Defaulting Member with respect to such Failed Contribution Amount is referred to herein as but shall constitute a “Failed Contribution Company Loan” and the Failed Contribution Company Loans together with the Non-Defaulting Member Company Loans are referred to herein as the “Company Loans”), in each case with recourse solely to the Company and its assets. Any Company Loan shall be expressly subordinated to all Member Loans and to any senior credit facility debt of the Company to the extent required advancing Member(s), shall bear interest at the lesser of the maximum rate permitted by such senior credit facilityapplicable law or the rate of thirteen percent (13%) per annum, compounded monthly, and shall be payable at such time as the Defaulting Executive Committee and advancing Member(s) shall agree and nevertheless before distributions of Net Cash Flow to any Member as provided below, and, if the Company Loans have not been repaid when the Company liquidates, as provided in Section 11.3.1. 1. Payments made to an advancing Member will be credited first to interest and then to principal. No Member shall bear all reasonable and customary costs and expenses related thereto and be obligated to the negotiation and documentation thereof, including reasonable fees and expenses of the counsel and accountants of the Company and the Member making such make a Company Loan. Any If any Member or Members make a Company Loan shall not be treated as a Capital Contribution by the Member making such Company Loan and shall not increase the Capital Account Loan, upon written request of such Member or result in any adjustment Members, the Company will execute and deliver a promissory note payable to such Members as evidence of the number Company Loan; provided that the failure of Units held by any Member unless and until the Company to execute such a promissory note will not affect the validity of the Company Loan (in question or portion thereof) is converted the obligation of the Company to a Capital Contribution repay the Company Loan in accordance with Section 3.3(b) or 3.3(c)the terms of this Agreement. Subject to the earlier conversion of a Each Company Loan into a Capital Contribution pursuant to Section 3.3(c)may be prepaid in whole or in part, each Company Loan shall have an initial term ending on the applicable First Anniversary Date (and no principal without penalty or interest shall be prepayable or paid with respect thereto during such initial period other than in connection with the conversion thereof to a Capital Contribution pursuant to Section 3.3(c) or as otherwise consented to by both Members), or longer if determined by the Board of Managers and consented to by the Non-Defaulting Member, and shall bear interest at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month). All payments on all Company Loans shall be applied first to accrued interest on all Company Loans, then to unpaid principal. With respect to Company Loans outstanding 12 months or more, (i) payments on account of interest on such Company Loans shall be made on a “last in, first out” basis so that the accrued interest on the most recent Company Loan is paid first and (ii) principal payments on such Company Loans shall be made on a “last in, first out” basis so that the most recent Company Loan is repaid first. Company Loans shall be repaid as quickly as practicable taking into account any restrictions under any then-existing senior credit facility. Notwithstanding anything to the contrary herein, no Member Loan shall constitute a Company Loanpremium.

Company Loan. (a) If any Member does not fund a Required Additional Capital Contribution in accordance with Section 3.2(a) or a Requested Additional Capital Contribution in accordance with Section 3.2(b), then, provided the Non-Defaulting Member has funded its Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, (i) the entire amount of the Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, made by the Non-Defaulting Member shall be deemed a loan to the Company (such loan is referred to herein as a “Non-Defaulting Member Company Loan”), and (ii) the Non-Defaulting Member (which shall expressly not include any Unadmitted Assignees) shall have the right (but not the obligation) to make a loan to the Company in the amount of the Defaulting Member’s entire Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be (the amount of the Defaulting Member’s failed Capital Contribution is referred to herein as the “Failed Contribution Amount” and any loan made to the Company by the Non-Defaulting Member with respect to such Failed Contribution Amount is referred to herein as a “Failed Contribution Company Loan” and the Failed Contribution Company Loans together with the Non-Defaulting Member Company Loans are referred to herein as the “Company Loans”), in each case with recourse solely to the Company and its assets. Any Company Loan shall be expressly subordinated to all Member Loans and to any senior credit facility of the Company to the extent required by such senior credit facility, and the Defaulting Member shall bear all reasonable and customary costs and expenses related thereto and to the negotiation and documentation thereof, including reasonable fees and expenses of the counsel and accountants of the Company and the Member making such Company Loan. Any Company Loan shall not be treated as a Capital Contribution by the Member making such Company Loan and shall not increase the Capital Account of such Member or result in any adjustment to the number of Units held by any Member unless and until such Company Loan (or portion thereof) is converted to a Capital Contribution in accordance with Section 3.3(b) or 3.3(c). Subject to the earlier conversion of a Company Loan into a Capital Contribution pursuant to Section 3.3(c), each Company Loan shall have an initial term ending on the applicable First Anniversary Date (and no principal or interest shall be prepayable or paid with respect thereto during such initial period other than in connection with the conversion thereof to a Capital Contribution pursuant to Section 3.3(c) or as otherwise consented to by both Members), or longer if determined by the Board of Managers and consented to by the Non-Defaulting Member, and shall bear interest at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month). All payments on all Company Loans shall be applied first to accrued interest on all Company Loans, then to unpaid principal. With respect to Company Loans outstanding 12 months or more, (i) payments on account of interest on such Company Loans shall be made on a “last in, first out” basis so that the accrued interest on the most recent Company Loan is paid first and (ii) principal payments on such Company Loans shall be made on a “last in, first out” basis so that the most recent Company Loan is repaid first. Company Loans shall be repaid as quickly as practicable taking into account any restrictions under any then-existing senior credit facility. Notwithstanding anything . (b) In the event that a Non-Defaulting Member makes or is deemed to have made a Company Loan in accordance with Section 3.3(a), and such Company Loan remains outstanding, in whole or in part, on the applicable First Anniversary Date, then such Non-Defaulting Member may elect at any time on or after such First Anniversary Date, in its sole discretion by written notice to the contrary hereinCompany and the Defaulting Member, no to convert all or part of the then-outstanding principal and accrued and unpaid interest of such Company Loan into a Capital Contribution (thereby increasing such Member’s Capital Account) and such Non-Defaulting Member Loan shall constitute be issued additional Units automatically in accordance with Section 3.4(c). (c) At any time prior to the applicable First Anniversary Date of a Company Loan, the Defaulting Member may cure or partially cure its default with respect to the related Failed Contribution Amount by making one or more payments, in an aggregate amount up to its Failed Contribution Amount plus interest thereon from the date of the related Company Loan at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month) (each amount paid by such Defaulting Member is referred to as a “Cured Amount”), as follows: (i) If the Non-Defaulting Member exercised its right to make a Failed Contribution Company Loan with respect to the default being cured, then the Defaulting Member shall make any such payments of a Cured Amount to the Non-Defaulting Member in exchange for the automatic assignment by such Non-Defaulting Member to the Defaulting Member of the right to receive payment from the Company of a portion of the then-outstanding principal and accrued and unpaid interest under the Failed Contribution Company Loan equal to the applicable Cured Amount. Concurrently with the receipt by the Non-Defaulting Member of each such payment of a Cured Amount, the portion of the then-outstanding principal and accrued and unpaid interest under the Failed Contribution Company Loan assigned to the Defaulting Member in accordance with the preceding sentence shall automatically convert into a Capital Contribution by the Defaulting Member (thereby increasing such Member’s Capital Account) and that portion of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan equal to such Cured Amount multiplied by the Applicable Cure Percentage shall automatically convert into a Capital Contribution by the Non-Defaulting Member (thereby increasing such Member’s Capital Account) and the Non-Defaulting Member and the Defaulting Member shall be issued additional Units automatically in accordance with Section 3.4(c). (ii) If the Non-Defaulting Member did not exercise its right to make a Failed Contribution Company Loan with respect to the default being cured, then the Defaulting Member shall make any such payments of a Cured Amount to the Company as a Capital Contribution (thereby increasing such Member’s Capital Account). Concurrently with the receipt by the Company of each such payment of a Cured Amount, the portion of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan equal to such Cured Amount multiplied by the Applicable Cure Percentage shall automatically convert into a Capital Contribution by the Non-Defaulting Member (thereby increasing such Member’s Capital Account) and the Non-Defaulting Member and the Defaulting Member shall be issued additional Units automatically in accordance with Section 3.4(c). For greater clarity, the deemed Capital Contribution by the Non-Defaulting Member pursuant to the prior sentence shall never exceed the maximum amount of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan.

Company Loan. (a) If any Member does not fund a Required Additional Capital Contribution in accordance with Section 3.2(a) or a Requested Additional Capital Contribution in accordance with Section 3.2(b), then, provided the Non-Defaulting Member has funded its Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, (i) the entire amount of the Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be, made by the Non-Defaulting Member shall be deemed a loan to the Company (such loan is referred to herein as a “Non-Defaulting Member Company Loan”), and (ii) the Non-Defaulting Member (which shall expressly not include any Unadmitted Assignees) shall have the right (but not the obligation) to make a loan to the Company in the amount of the Defaulting Member’s entire Required Additional Capital Contribution or Requested Additional Capital Contribution, as the case may be (the amount of the Defaulting Member’s failed Capital Contribution is referred to herein as the “Failed Contribution Amount” and any loan made to the Company by the Non-Defaulting Member with respect to such Failed Contribution Amount is referred to herein as a “Failed Contribution Company Loan” and the Failed Contribution Company Loans together with the Non-Defaulting Member Company Loans are referred to herein as the “Company Loans”), in each case with recourse solely to the Company and its assets. Any Company Loan shall be expressly subordinated to all Member Loans and to any senior credit facility of the Company to the extent required by such senior credit facility, and the Defaulting Member shall bear all reasonable and customary costs and expenses related thereto and to the negotiation and documentation thereof, including reasonable fees and expenses of the counsel and accountants of the Company and the Member making such Company Loan. Any Company Loan shall not be treated as a Capital Contribution by the Member making such Company Loan and shall not increase the Capital Account of such Member or result in any adjustment to the number of Units held by any Member unless and until such Company Loan (or portion thereof) is converted to a Capital Contribution in accordance with Section 3.3(b) or 3.3(c). Subject to the earlier conversion of a Company Loan into a Capital Contribution pursuant to Section 3.3(c), each Company Loan shall have an initial term ending on the applicable First Anniversary Date (and no principal or interest shall be prepayable or paid with respect thereto during such initial period other than in connection with the conversion thereof to a Capital Contribution pursuant to Section 3.3(c) or as otherwise consented to by both Members), or longer if determined by the Board of Managers and consented to by the Non-Defaulting Member, and shall bear interest at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month). All payments on all Company Loans shall be applied first to accrued interest on all Company Loans, then to unpaid principal. With respect to Company Loans outstanding 12 months or more, (i) payments on account of interest on such Company Loans shall be made on a “last in, first out” basis so that the accrued interest on the most recent Company Loan is paid first and (ii) principal payments on such Company Loans shall be made on a “last in, first out” basis so that the most recent Company Loan is repaid first. Company Loans shall be repaid as quickly as practicable taking into account any restrictions under any then-existing senior credit facility. Notwithstanding anything to the contrary herein, no Member Loan shall constitute a Company Loan. (b) In the event that a Non-Defaulting Member makes or is deemed to have made a Company Loan in accordance with Section 3.3(a), and such Company Loan remains outstanding, in whole or in part, on the applicable First Anniversary Date, then such Non-Defaulting Member may elect at any time on or after such First Anniversary Date, in its sole discretion by written notice to the Company and the Defaulting Member, to convert all or part of the then-outstanding principal and accrued and unpaid interest of such Company Loan into a Capital Contribution (thereby increasing such Member’s Capital Account) and such Non-Defaulting Member shall be issued additional Units automatically in accordance with Section 3.4(c). (c) At any time prior to the applicable First Anniversary Date of a Company Loan, the Defaulting Member may cure or partially cure its default with respect to the related Failed Contribution Amount by making one or more payments, in an aggregate amount up to its Failed Contribution Amount plus interest thereon from the date of the related Company Loan at a rate equal to the Base Rate plus five percentage points per annum (computed on the basis of a 360-day year and actual days elapsed, compounded monthly on the first day of each calendar month) (each amount paid by such Defaulting Member is referred to as a “Cured Amount”), as follows: (i) If the Non-Defaulting Member exercised its right to make a Failed Contribution Company Loan with respect to the default being cured, then the Defaulting Member shall make any such payments of a Cured Amount to the Non-Defaulting Member in exchange for the automatic assignment by such Non-Defaulting Member to the Defaulting Member of the right to receive payment from the Company of a portion of the then-outstanding principal and accrued and unpaid interest under the Failed Contribution Company Loan equal to the applicable Cured Amount. Concurrently with the receipt by the Non-Defaulting Member of each such payment of a Cured Amount, the portion of the then-outstanding principal and accrued and unpaid interest under the Failed Contribution Company Loan assigned to the Defaulting Member in accordance with the preceding sentence shall automatically convert into a Capital Contribution by the Defaulting Member (thereby increasing such Member’s Capital Account) and that portion of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan equal to such Cured Amount multiplied by the Applicable Cure Percentage shall automatically convert into a Capital Contribution by the Non-Defaulting Member (thereby increasing such Member’s Capital Account) and the Non-Defaulting Member and the Defaulting Member shall be issued additional Units automatically in accordance with Section 3.4(c). (ii) If the Non-Defaulting Member did not exercise its right to make a Failed Contribution Company Loan with respect to the default being cured, then the Defaulting Member shall make any such payments of a Cured Amount to the Company as a Capital Contribution (thereby increasing such Member’s Capital Account). Concurrently with the receipt by the Company of each such payment of a Cured Amount, the portion of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan equal to such Cured Amount multiplied by the Applicable Cure Percentage shall automatically convert into a Capital Contribution by the Non-Defaulting Member (thereby increasing such Member’s Capital Account) and the Non-Defaulting Member and the Defaulting Member shall be issued additional Units automatically in accordance with Section 3.4(c). For greater clarity, the deemed Capital Contribution by the Non-Defaulting Member pursuant to the prior sentence shall never exceed the maximum amount of the then-outstanding principal and accrued and unpaid interest under the related Non-Defaulting Member Company Loan.