Failure to Contribute Capital. If any Member fails to make a Capital Contribution required under Section 3.3(b) by the date such Capital Contribution is due and such failure continues for ten (10) Business Days after written notice from the Member which has not failed to make its Capital Contribution (any such failing Member shall be a “Capital Defaulting Member” and the amount of the failed Capital Contribution shall be the “Capital Default Amount”), then the non-Capital Defaulting Member shall have any one and only one of the following remedies:
(a) to advance to the Company (or, at its election, cause any of its Affiliates to advance to the Company) on behalf of, and as a loan to, the Capital Defaulting Member, an amount equal to the Capital Default Amount (each such loan, a “Capital Default Loan”). The Capital Account of the Capital Defaulting Member shall be credited with the amount of such Capital Default Loan, which shall be deemed to be a Capital Contribution made by the Capital Defaulting Member, and such amount shall constitute a debt owed by the Capital Defaulting Member to the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan). Any Capital Default Loan shall bear interest at a rate equal to 15% per annum and shall be payable from any distributions due the Capital Defaulting Member hereunder, but shall in all events be payable in full by the ninetieth (90th) day following the date such Capital Default Loan was made. Interest on a Capital Default Loan to the extent unpaid shall accrue and compound monthly. A Capital Default Loan shall be prepayable at any time or from time to time without penalty. While any Capital Default Loan is outstanding, notwithstanding anything in this Agreement to the contrary, all distributions to the Capital Defaulting Member hereunder shall be applied first to payment of any interest due under any Capital Default Loan and then to principal until all amounts due thereunder are paid in full. All payments made in repayment of any Capital Default Loan shall be applied first toward payment of unpaid accrued interest and then (if any remains) toward payment of principal. If a Capital Default Loan is not paid on or prior to the date such Capital Default Loan becomes due, the non-Capital Defaulting Member (or its applicable Affiliate that has funded the Capital Default Loan) may pursue all available rights and remedies against the Capital Defaulting Member and, pursuant to the applicable Parent Guaranty, its...
Failure to Contribute Capital. If either Party (the “Defaulting Party”) fails to make any installment of its capital contribution (the “Overdue Capital Amount”) pursuant to this JV Contract and such failure continues for more than [thirty (30)] days, the other Party (the “Non-Defaulting Party”) shall have the right to exercise the following remedies by notice to the Defaulting Party and the JV Company:
(a) contribute the Overdue Capital Amount, thereby increasing the Equity Interest of the Non-Defaulting Party and reducing the Equity Interest of the Defaulting Party, and the seat of Directors held by the Parties shall be adjusted accordingly;
(b) require the JV Company to withhold any distributions to the Defaulting Party or other amounts payable by the JV Company to the Defaulting Party up to the Overdue Capital Amount;
(c) require the Defaulting Party to contribute the Overdue Capital Amount and 0.05%of the Overdue Capital Amount for every day of delay to the Non-Defaulting Party; or
(d) terminate this JV Contract according to Article 20 and claim liquidated damages against the Defaulting Party. For the avoidance of doubt, the above remedies are cumulative, may be exercised singly or concurrently and shall not affect other remedies available to the Non-Defaulting Party under PRC Laws. Notwithstanding to the above, if mCube fails to make its capital contribution within the timeframe as provided for hereunder not due to the fault of itself (“Other Causes”), it shall not be deemed to have been in breach of this JV Contract. In this case, the timing for capital contribution by mCube shall be extended a period until all the Other Causes have been eliminated.
Failure to Contribute Capital. (a) In the event any Member fails to make a Capital Contribution to the Company when due, the defaulting Member shall be responsible to pay to the Company, in addition to the amount of such Capital Contribution, interest thereon at a rate (the "Default Rate") equal to the lesser of (x) the Loan Rate plus 3% and (y) the highest rate permitted by law, from the date such Capital Contribution was due until the earlier of (a) the date such Capital Contribution is made (or deemed made as hereinafter provided) by the defaulting Member and (b) the date the defaulting Member's interest in the Company is sold as hereinafter provided. In addition, if such failure continues for 10 days after notice from the Managing Member, the Managing Member, in its sole discretion, may (i) subject to the applicable provisions of the Finance Agreement, cause the defaulting Member's interest in the Company to be sold at a price equal to 66-2/3% of its fair market value (as determined by the Managing Member in its reasonable discretion), without taking into account any amount deemed to have been contributed to the Company by the defaulting Member as hereinafter provided, (ii) advance (and/or permit one or more of the non-defaulting Members to advance) the amount as to which the defaulting Member is in default, (iii) enforce the defaulting Member's obligation to make the Capital Contribution in question and the interest accrued thereon by appropriate legal proceedings, (iv) deprive the defaulting Member of its right to exercise any voting rights which it may have under this Agreement, and (v) pursue any other remedies it deems advisable (including, without limitation, the recovery from the defaulting Member of all costs and expenses of the Company associated with the default). Such rights and remedies shall not be exclusive. Any advances made by the Managing Member or the non-defaulting Members as provided in clause (ii) above shall be treated as special capital contributions to the Company ("Default Contributions"), which Default Contributions shall be treated as having been used by the Company to make a loan ("Default Loan") to the defaulting Member. Any Default Loan deemed made to the defaulting Member shall be payable on demand and shall bear interest at the Default Rate, and the proceeds of such Default Loan shall be deemed to have been used by the defaulting Member to make the Capital Contribution as to which it is in default (provided that the defaulting Member shall nonetheless...
Failure to Contribute Capital. The failure of a Member to make a Capital Contribution required by Section 4.3 hereof and a continuation of such failure for more than five (5) business days after written notice by any other Member to the Defaulting Member and the other non-defaulting Members that such Defaulting Member has breached its obligations under Section 4.3 (“Failure Notice”). The Members acknowledge that the failure of a Non-Funding Member to make a Remaining Entitlement Contribution or a Pre-Development Period Contribution shall not constitute an Event of Default under this Agreement;
Failure to Contribute Capital. If a Member fails to make a Contribution required by Section 3.2(a) within the ten (10) business day period set forth therein, then the other Member may immediately advance such amount as a "Default Loan" (described below). The Member so advancing shall give written notice to the failing Member simultaneously with the making of the Default Loan advance. If such failed advance is not repaid in full (with interest) within sixty (60) days, then the advancing Member may proceed under the remainder of this Section. If any Member fails to make a Contribution required under this Article III other than a Contribution required by Section 3.2(a) by the date such Contribution is due and such failure continues until the later of (i) thirty (30) days after written notice from the Member which has not failed to make its Contribution or (ii) thirty (30) days after a decision is rendered in the arbitration proceedings under Section 12.3 (assuming that arbitration had been initiated as to such Contribution) (any such failing Member shall be a "Defaulting Member" and the amount of the failed contribution shall be the "Default Amount"), then the non-defaulting Member shall have any one or more of the following remedies as its sole and exclusive remedies at law or in equity in connection with the applicable default; provided, however, that if the non-defaulting Member elects the remedy set forth in Subsection (a), it shall not have the right to proceed under Subsections (b) or (c) unless and until the Defaulting Member shall default in the payment of any applicable Default Loan, and provided further that if the non-Defaulting Member elects the remedy set forth in Subsection (e), it may not elect the remedies set forth in Subsections (a), (b), (c) or (d) in connection with the applicable default:
(a) to advance to the Company on behalf of, and as a loan to the Defaulting Member, an amount equal to the Default Amount to be evidenced by a promissory note in substantially the form attached hereto as Exhibit B (each such loan, a "Default Loan"). The Capital Account of the Defaulting Member shall be credited with the amount of such Contribution and such amount shall constitute a debt owed by the Defaulting Member to the non-defaulting Member. Any Default Loan shall bear interest at the Default Rate and shall be payable from any distributions due the Defaulting Member hereunder, but shall in all events be payable in full by the last day of the twelfth (12th) full month after the mak...
Failure to Contribute Capital. Should any Member fail to timely make a Capital Contribution, as required under this Section IV, then the remaining Member(s), or any one of them, may elect to, in order of priority, seek additional necessary funds through: (1) a third- party loan or line of credit; (2) a Member or shareholder loan with standard repayment terms; or,
Failure to Contribute Capital. If a Partner becomes a Significant Non-Contributing Partner, any of the other Partners may declare a Partnership Impasse if such other Partner is not a Significant Non-Contributing Partner. A Partner shall be deemed a “Significant Non-Contributing Partner” if: (1) such Partner is a Non-Contributing Partner with respect to at least three (3) separate calls for Additional Capital that are made within a single Fiscal Year (without regard to whether such calls are made consecutively), (2) such Partner is a Non-Contributing Partner with respect to at least two (2) separate consecutive calls for Additional Capital (without regard to whether such calls were made within a single Fiscal Year), or (3) its aggregate Delinquent Additional Capital Contributions (even if subsequently cured by such Partner) equal or exceed Two Hundred Thousand and No/100 Dollars ($200,000).
Failure to Contribute Capital. Each Member shall be obligated to contribute Mandatory Capital, and each Member shall be permitted (but not required to) contribute Discretionary Capital. If a Member fails to contribute the entire amount specified in a Capital Call within the time periods set forth in Section 3.2, then such Member shall be a “Non-Contributing Member”, and the portion thereof not contributed by such Non-Contributing Member is referred to herein as the “Non-Contributing Member Unfunded Amount”. In the event a Non- Contributing Member Unfunded Amount exists and the other Member (the “Contributing Member”) has funded its entire share of the Capital Contributions specified in a Capital Call based on its Percentage Interest, the Contributing Member shall notify the Non-Contributing Member in writing of its failure to timely contribute Mandatory Capital or Discretionary Capital and shall have the remedies set forth below in this Section 3.3. In addition, if the Non-Contributing Member has failed to fund Mandatory Capital, the Non-Contributing Member’s Board Representative(s) shall not thereafter have approval or voting rights with respect to the Approved Project intended to be benefited by such Mandatory Capital (other than with respect to matters constituting Fundamental Decisions).
Failure to Contribute Capital
