Common use of Failure to Comply with Drawdown Notice Clause in Contracts

Failure to Comply with Drawdown Notice. Notwithstanding any provision of this Agreement to the contrary but subject to clause 13.5, if any Investor fails to advance to the Partnership the full amount which is the subject of a Drawdown Notice on or before the date of expiry of such Drawdown Notice (such shortfall being the "Default Amount"), then the Manager shall, as soon as reasonably practicable thereafter, give notice to such Investor requiring it to remedy such default and to pay interest to the Partnership on the amount outstanding for the period from the date of expiry of the Drawdown Notice up to the date of payment (or, if earlier, the date on which the Interest of the Defaulting Investor is forfeited or transferred under clauses 6.15 or 6.16) thereof at the rate of XXXXX plus 4 per cent or such higher rate (calculated on a daily basis and compounded annually) as in the General Partner's reasonable opinion is required to enable the Partnership to meet its costs arising from and/or associated with such default. Any interest paid under clause 6.12 shall be: (a) in addition to the Defaulting Investor's Commitment, shall not reduce the Undrawn Commitment of the Defaulting Investor and shall not be reflected in any Partner accounts; and (b) paid to the Partnership for the account of the non-Defaulting Investors pro rata to their Commitments. If the Investor has not remedied such default by paying the full amount of the Default Amount and any accrued interest at the expiry of 30 days from the date of such notice, the Manager shall, unless each of the Investors (other than the potential Defaulting Investor) otherwise agree, deem such Investor to be a "Defaulting Investor". The Manager shall, without prejudice to any other rights it or the Partnership may have (and so that interest as set out above shall continue to accrue after such period of 30 days), as soon as reasonably practicable after the expiry of such period of 30 days either: (a) forfeit the Interest of the Defaulting Investor in accordance with clause 6.15; or (b) sell, acting as agent for the Defaulting Investor, all or part of the Interest of the Defaulting Investor in accordance with the provisions of clause 6.16. If the General Partner exercises its right to forfeit the Interest of a Defaulting Investor under clause 6.14: The General Partner shall cause the Capital Contribution of the Defaulting Investor to be returned by the Partnership to the Defaulting Investor, the Outstanding Loan of the Defaulting Investor to be forfeited and the Defaulting Investor to be expelled from the Partnership, at which point: the Defaulting Investor shall cease to be a Limited Partner, shall surrender its Interest and shall cease to have any rights against any other Limited Partner or under this Agreement, other than as set out in clause 6.15(b); and the Total Commitments shall be reduced by the amount of the Defaulting Investor's Commitment, provided that the General Partner shall not be deemed to have breached any restriction or limitation contained in this Agreement which is calculated by reference to Total Commitments, solely because of that reduction. The rights of the Defaulting Investor following forfeiture shall be limited to the right to receive an amount equal to the lowest of: its Outstanding Loan as at the date of forfeiture; and the Value of such Defaulting Investor's Interest at the date of forfeiture, less in each case: all costs and expenses incurred by the Partnership, the General Partner, the Manager or any of their respective Associates in connection with the Defaulting Investor’s default and the enforcement of this Agreement and any other rights any of them may have against the Defaulting Investor (including legal fees and expenses together with any Tax thereon); the amount of General Partner’s Share attributable to the Defaulting Investor that the General Partner would have received had the Defaulting Investor not become a Defaulting Investor, calculated from the from and including the date specified in the Drawdown Notice in respect of which the default occurred until the date on which the winding up of the Partnership is completed, which amounts shall be paid to the General Partner by the Partnership as General Partner’s Share; and an additional amount, if any, determined by the General Partner, after consultation with the Auditors, as being necessary to compensate the other Partners in relation to any additional Tax or other liability suffered by them as a consequence of the Defaulting Investor’s default; and such amount shall only be payable during the winding-up of the Partnership under clause 15 if the other Investors have received full payment of the amounts due under clauses 12.1(b), 12.1(c) and 12.1(d) at the time of such distribution, at which point the foregoing amount shall be paid to the Defaulting Investor(s) to the extent of the proceeds then available for distribution. If at that time there are insufficient Partnership Assets available to pay the foregoing amount, the Defaulting Investor shall have no further rights in respect of the shortfall. The obligation to pay this amount is an obligation of the Partnership and no Partner shall be personally liable for its payment, in full or in part. Following the forfeiture of a Defaulting Investor’s Interest: (i) the General Partner shall cause such adjustments to be made to the books and accounts of the Partnership and between the Investors as it shall consider necessary in the circumstances so that each Investor shall share in such forfeiture in proportion to its Commitment; and (ii) the Founder Partner shall be repaid part of its Capital Contribution so that the amount of its Capital Contribution as a Founder Partner shall continue to equal the Carried Interest Share of the total Capital Contributions subscribed in the Partnership immediately following such forfeiture. If the General Partner exercises its right to sell all or part of the Interest of a Defaulting Investor under clause 6.14, then:

Failure to Comply with Drawdown Notice. Notwithstanding Each Class A Member agrees that timely payment of its obligations under its Capital Commitment is of the essence and that any provision of this Agreement failure by a Class A Member to meet its obligations thereunder would cause injury to the contrary but subject Company and to clause 13.5the other Class A Members, if and that the amount of damages caused by any Investor such injury would be extremely difficult to calculate. If a Class A Member fails to advance to timely fund in full the Partnership the full amount which is the subject of a set forth in any Drawdown Notice on or before the date of expiry expiration of such Drawdown Notice (such shortfall being the "Default Amount")Notice, then (after the expiration of any grace period granted by the Manager shallin its sole discretion) the Manager shall notify the Class A Member of such failure (the “Default Notice”); provided, as soon as reasonably practicable thereafterhowever, that the failure to give such notice to such Investor requiring it to remedy such default and to pay interest to shall not affect in any way the Partnership on the amount outstanding for the period from the date of expiry liability of the Drawdown Class A Member to make any required contribution or subject the Manager to any liability hereunder or otherwise. The Default Notice up to may be given by telephone, followed by confirmation by facsimile, by electronic mail (receipt confirmed) or by overnight mail. A Class A Member may cure such failure by making the date of required payment (or, if earlier, the date on which the Interest of the Defaulting Investor is forfeited or transferred under clauses 6.15 or 6.16) thereof at the rate of XXXXX plus 4 per cent or such higher rate (calculated on a daily basis and compounded annually) as in the General Partner's reasonable opinion is required to enable the Partnership to meet its costs arising from and/or associated with such default. Any interest paid under clause 6.12 shall be: (a) in addition to the Defaulting Investor's Commitment, shall not reduce the Undrawn Commitment of the Defaulting Investor and shall not be reflected in any Partner accounts; and (b) paid to the Partnership for the account of the non-Defaulting Investors pro rata to their Commitments. If the Investor has not remedied such default by paying the full amount of the Default Amount and any accrued interest at the expiry of 30 Prime Rate, within five (5) business days from after the date of Default Notice (the “Cure Period”). A Class A Member that fails to make such notice, payment prior to the Manager shall, unless each expiration of the Investors (other than the potential Defaulting Investor) otherwise agree, deem such Investor to Cure Period shall be a "“Defaulting Investor". The Manager shall, without prejudice to any other rights it or the Partnership may have (and so that interest as set out above Member.” Each Defaulting Member shall continue to accrue after such period of 30 days), as soon as reasonably practicable after the expiry of such period of 30 days either: (a) forfeit the Interest of the Defaulting Investor in accordance with clause 6.15; or (b) sell, acting as agent for the Defaulting Investor, all or part of the Interest of the Defaulting Investor in accordance with the provisions of clause 6.16. If the General Partner exercises its right to forfeit the Interest of a Defaulting Investor under clause 6.14: The General Partner shall cause the Capital Contribution of the Defaulting Investor to be returned by the Partnership pay to the Defaulting Investor, the Outstanding Loan of the Defaulting Investor to be forfeited and the Defaulting Investor to be expelled from the Partnership, at which point: the Defaulting Investor shall cease to be a Limited Partner, shall surrender its Interest and shall cease to have any rights against any other Limited Partner or under this Agreement, other than as set out in clause 6.15(b); and the Total Commitments shall be reduced by the amount of the Defaulting Investor's Commitment, provided that the General Partner shall not be deemed to have breached any restriction or limitation contained in this Agreement which is calculated by reference to Total Commitments, solely because of that reduction. The rights of the Defaulting Investor following forfeiture shall be limited to the right to receive an amount equal to the lowest of: its Outstanding Loan as at the date of forfeiture; and the Value of such Defaulting Investor's Interest at the date of forfeiture, less in each case: Company all costs and expenses incurred by the PartnershipCompany in seeking and obtaining alternative funds to replace the funds not so contributed by the Defaulting Member and in enforcing its rights and remedies against the Defaulting Member. Each Defaulting Member shall execute, deliver and perform such agreements, certificates and other instruments as the Manager shall reasonably request. In addition, and without limiting the foregoing, the General PartnerManager, in its sole discretion and in addition to exercising any other rights afforded by law or in equity, may take any or all of the following actions in whole or in part, to which each Class A Member hereby consents: (i) forfeiture of the Defaulting Member’s share of all profits in the Company from and after the expiration of the Drawdown Notice; (ii) prohibition of all Distributions to the Defaulting Member until all Capital Contributions of all other Class A Members have been returned; (iii) conversion of the Defaulting Member from a Class A Member to an Economic Interest Holder with respect to any Class A Units which continue to be owned by such Defaulting Member; (iv) the purchase by the Company or its designee of the Defaulting Member’s Class A Units for the lesser of (A) 70% of the unreturned Capital Contributions actually made by such Defaulting Member, and (B) 70% of the balance of the Defaulting Member’s Capital Account, regardless of the current fair market value of the Class A Units, which purchase price shall be payable without interest within twelve (12) months of the date of such purchase; and (v) expulsion of the Defaulting Member from the Company as liquidated damages to the Company. (a) Upon expulsion of a Class A Member, the Manager or Capital Account of such Class A Member shall be forfeited and shall become part of the Company assets and shall be allocated among the Class A Members (other than any expelled Class A Member) in accordance with this Section 3.1.11. If the right of expulsion is exercised against a Class A Member under this Section 3.1.11, the Capital Commitments shall be reduced by an amount equal to the amount of the unfunded Capital Commitment of the defaulting Class A Member, and the interests of the remaining Class A Members shall be adjusted based upon their respective Associates funded Capital Commitments, and thereafter such reduced Capital Commitments shall apply for all purposes of this Agreement. (b) Unless and until expelled from the Company or converted to an Economic Interest Holder, any Defaulting Member shall remain liable for all future Drawdown Notices and other obligations of a Class A Member. (c) No right, power or remedy conferred upon the Manager in connection with this Section 3.1.11 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 3.1.11 or now or hereafter available at law, in equity, by statute or otherwise. No course of dealing between the Manager and any Defaulting Investor’s default Member and no delay in exercising any right, power or remedy conferred in this Section 3.1.11 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. (d) Each Class A Member acknowledges by its execution of this Agreement that it has been admitted to the Company in reliance upon its agreements under this Section 3.1.11 (as well as the other provisions of this Agreement), that the Manager and the enforcement Company may have no adequate remedy at law for a breach of this Agreement and any other rights any that damages resulting from such a breach may be impossible to ascertain, both at the time of them may have against the Defaulting Investor (including legal fees entering into this Agreement and expenses together with any Tax thereon); the amount of General Partner’s Share attributable to the Defaulting Investor that the General Partner would have received had the Defaulting Investor not become a Defaulting Investor, calculated from the from and including the date specified in the Drawdown Notice in respect of which the default occurred until the date on which the winding up of the Partnership is completed, which amounts shall be paid to the General Partner by the Partnership as General Partner’s Share; and an additional amount, if any, determined by the General Partner, after consultation with the Auditors, as being necessary to compensate the other Partners in relation to any additional Tax or other liability suffered by them as a consequence of the Defaulting Investor’s default; and such amount shall only be payable during the winding-up of the Partnership under clause 15 if the other Investors have received full payment of the amounts due under clauses 12.1(b), 12.1(c) and 12.1(d) at the time of such distribution, at which point the foregoing amount shall be paid to the Defaulting Investor(s) to the extent of the proceeds then available for distribution. If at that time there are insufficient Partnership Assets available to pay the foregoing amount, the Defaulting Investor shall have no further rights in respect of the shortfall. The obligation to pay this amount is an obligation of the Partnership and no Partner shall be personally liable for its payment, in full or in part. Following the forfeiture of a Defaulting Investor’s Interest: (i) the General Partner shall cause such adjustments to be made to the books and accounts of the Partnership and between the Investors as it shall consider necessary in the circumstances so that each Investor shall share in such forfeiture in proportion to its Commitment; and (ii) the Founder Partner shall be repaid part of its Capital Contribution so that the amount of its Capital Contribution as a Founder Partner shall continue to equal the Carried Interest Share of the total Capital Contributions subscribed in the Partnership immediately following such forfeiture. If the General Partner exercises its right to sell all or part of the Interest of a Defaulting Investor under clause 6.14, then:breach.

Failure to Comply with Drawdown Notice. (a) Notwithstanding any provision of this Agreement to the contrary but subject to clause 13.5contrary, if any Investor Limited Partner fails to advance to the Partnership the full amount which is the subject of a Drawdown Notice on or before the date of expiry of such Drawdown Notice (such shortfall being the "Default Amount")Notice, then the Manager shall, as soon as reasonably practicable thereafter, give shall provide written notice of such failure to such Investor requiring it to remedy Limited Partner. If such default and to pay interest Limited Partner does not advance to the Partnership on the amount outstanding for the period from the date owing within ten Business Days of expiry of the Drawdown Notice up to the date of payment (or, if earlier, the date on which the Interest of the Defaulting Investor is forfeited or transferred under clauses 6.15 or 6.16) thereof at the rate of XXXXX plus 4 per cent or such higher rate (calculated on a daily basis and compounded annually) as in the General Partner's reasonable opinion is required to enable the Partnership to meet its costs arising from and/or associated with such default. Any interest paid under clause 6.12 shall be: (a) in addition to the Defaulting Investor's Commitment, shall not reduce the Undrawn Commitment of the Defaulting Investor and shall not be reflected in any Partner accounts; and (b) paid to the Partnership for the account of the non-Defaulting Investors pro rata to their Commitments. If the Investor has not remedied such default by paying the full amount of the Default Amount and any accrued interest at the expiry of 30 days from the date receipt of such notice, the Manager shall, unless each of may then in its sole discretion allow a Limited Partner up to a further 15 Business Days to make such advance after which the Investors Manager shall cancel (other than the potential Defaulting Investor) otherwise agree, deem such Investor to be a "Defaulting Investor". The Manager shall, without prejudice to any other rights it or which the Partnership or any Partner may have (and so that interest as set out above shall continue to accrue after against such period Limited Partner) all of 30 days), as soon as reasonably practicable after the expiry of such period of 30 days either: (a) forfeit the Interest of the Defaulting Investor in accordance with clause 6.15; or (b) sell, acting as agent for the Defaulting Investor, all or part of the Interest of the Defaulting Investor in accordance with the provisions of clause 6.16. If the General Partner exercises its right to forfeit the Interest of a Defaulting Investor under clause 6.14: The General Partner shall cause the Capital Contribution of such Limited Partner unless the Defaulting Investor Manager agrees, in consultation with the Advisory Board, that such cancellation shall not be made. (b) The Manager shall also cancel all of the Capital Contribution of a Limited Partner who fails to be returned comply with the terms of a Drawdown Notice where such failure is due to such Limited Partner’s bankruptcy, insolvency, dissolution, liquidation or other similar event provided that the Manager may in its sole discretion allow such Limited Partner up to 15 Business Days to meet the Drawdown Notice following failure to comply with the terms of the Drawdown Notice. (c) Upon cancellation of such Capital Contribution all amounts standing to the credit of such Limited Partner’s relevant accounts including loan account shall (to the extent the Manager exercises its discretion hereunder to forfeit the Limited Partners interest) shall thereupon (when the Manager is reasonably satisfied that no legal proceedings have or are likely to commence relating to such forfeiture) accrue to the SPV (including the Capital Contribution of such Limited Partner). In addition, the right to repayment of allof its Loan previously advanced by such Limited Partner shall accrue to the SPV. (d) In the event of the right of cancellation being exercised against a Limited Partner under this clause the total Commitments to the Partnership to the Defaulting Investor, the Outstanding Loan of the Defaulting Investor to be forfeited and the Defaulting Investor to be expelled from the Partnership, at which point: the Defaulting Investor shall cease to be a Limited Partner, shall surrender its Interest and shall cease to have any rights against any other Limited Partner or under this Agreement, other than as set out in clause 6.15(b); and the Total Commitments shall be reduced by the amount of the Defaulting Investor's Commitment, provided that the General Partner shall not be deemed to have breached any restriction or limitation contained in this Agreement which is calculated by reference to Total Commitments, solely because of that reduction. The rights Commitment of the Defaulting Investor following forfeiture defaulting Limited Partner and thereafter such reduced total Commitment shall be limited to apply for the right to receive an amount equal to the lowest of: its Outstanding Loan as at the date of forfeiture; and the Value of such Defaulting Investor's Interest at the date of forfeiture, less in each case: all costs and expenses incurred by the Partnership, the General Partner, the Manager or any of their respective Associates in connection with the Defaulting Investor’s default and the enforcement purposes of this Agreement and any other rights any of them may have against the Defaulting Investor (including legal fees and expenses together with any Tax thereon); the amount of General Partner’s Share attributable to the Defaulting Investor that the General Partner would have received had the Defaulting Investor not become a Defaulting Investor, calculated from the from and including the date specified in the Drawdown Notice in respect of which the default occurred until the date on which the winding up of the Partnership is completed, which amounts shall be paid to the General Partner by the Partnership as General Partner’s Share; and an additional amount, if any, determined by the General Partner, after consultation with the Auditors, as being necessary to compensate the other Partners in relation to any additional Tax or other liability suffered by them as a consequence Investment acquired after the date of the Defaulting Investor’s default; forfeiture and such amount shall only be payable during the winding-up of the Partnership under clause 15 if the other Investors have received full payment of the amounts due under clauses 12.1(b), 12.1(c) and 12.1(d) at the time of such distribution, at which point the foregoing amount shall be paid to the Defaulting Investor(s) to the extent of the proceeds then available for distribution. If at that time there are insufficient Partnership Assets available to pay the foregoing amount, the Defaulting Investor shall have no further rights in respect of the shortfall. The obligation to pay this amount is an obligation of the Partnership and no Partner shall be personally liable for its payment, in full or in part. Following the forfeiture of a Defaulting Investor’s Interest: (i) the General Partner shall cause such adjustments to be made to the books and accounts of the Partnership and between the Investors as it shall consider necessary in the circumstances so that each Investor shall share in such forfeiture in proportion to its Commitment; and (ii) the Founder Partner shall be repaid part of its Capital Contribution so that the amount of its Capital Contribution as a Founder Partner shall continue to equal the Carried Interest Share of and the total Capital Contributions subscribed in Management Fee accruing from the Partnership immediately next following Drawings Date following such forfeiture. If the General Partner exercises its right to sell all or part of the Interest of a Defaulting Investor under clause 6.14, then:.