FAILURE TO CONTRIBUTE. 3.5.1 Default If any Limited Partner fails to contribute timely all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner is required to return (in each case, whether pursuant to this Agreement or any AIV Agreement), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure): (a) The General Partner may sell the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% of the value of the Defaulting Limited Partner’s interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited Partner’s Capital Contributions attributable to each Investment and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund. (b) The General Partner may segregate the Capital Account of the Defaulting Limited Partner on the books of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income or Current Income (which will instead be allocated to the non-defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund. (c) The General Partner may withhold from and set off against any distribution otherwise payable to the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default.
Appears in 1 contract
Samples: Limited Partnership Agreement
FAILURE TO CONTRIBUTE. 3.5.1 Default (a) If any Limited Partner fails to a Member does not contribute timely by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner Capital Contribution that Member is required to return make as provided in these Regulations, the Company may exercise, on notice to that Member (in each case, whether pursuant to this Agreement or any AIV Agreementthe "Delinquent Member"), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):remedies:
(a) The General Partner may sell the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% taking such action (including, without limitation, court proceedings) as the Member may deem appropriate to obtain payment by the Delinquent Member of the value portion of the Defaulting Limited Partner’s Delinquent Member's Capital Contribution that is in default, together with interest in each Investmentthereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, measured by all at the Fair Value cost and expense of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and Delinquent Member;
(ii) 50% of that permitting the other Members in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Defaulting Limited Partner’s Delinquent Member's Capital Contributions attributable to each Investment and on such other terms as Contribution that is in default, with the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, following results:
(A) the sum advanced constitutes a loan from the Lending Member to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make Delinquent Member and a Capital Contribution, if any, second, Contribution of that sum to the payment of any costs and expenses incurred Company by the Fund or any Alternative Vehicle as a result Delinquent Member pursuant to the applicable provisions of these Regulations,
(B) the principal balance of the Defaulting Limited Partner’s failure to contribute, loan and third, all accrued unpaid interest thereon is due and payable in whole on the tenth day after written demand therefor by the Lending Member to the Delinquent Member,
(C) the amount lent bears interest at the Default Interest Rate from the day that the advance payment of Management Fees is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Member,
(D) all distributions from the Company that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted made to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.
Delinquent Member (b) The General Partner may segregate the Capital Account of the Defaulting Limited Partner on the books of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income whether before or Current Income (which will instead be allocated to the non-defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the FundCompany) instead will be paid to the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),the payment of the loan and interest accrued on it is secured by a security interest in the Delinquent Member's Membership Interest, as more fully set in Section 4.03(b), and
(E) the Lending Member has the right, in each case, prior addition to the completion other rights and remedies granted to it pursuant to these Regulations or available to it at law or in equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Delinquent Member of the dissolutionloan and all accrued and unpaid interest on it, liquidation at the cost and termination expense of the Fund.Delinquent Member;
(ciii) The General Partner may withhold from and exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas, as more fully set off against any distribution otherwise payable forth in Section 4.03(b);
(iv) reducing the Delinquent Member's Membership Interest or other interest in the Company;
(v) subordination of the Delinquent Member's interest to the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses non- defaulting Member;
(including the costs of any borrowingvi) incurred by or on behalf a forced sale of the Fund in connection with such default.Delinquent Member's interest; (vii)forfeiture of the Delinquent Member's interest;
Appears in 1 contract
Samples: Operating Agreement
FAILURE TO CONTRIBUTE. 3.5.1 Default If any Limited Partner a Member (a "Defaulting Member") fails to contribute timely all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to Additional Capital Contribution in full within the AIFM or the Management Company or return any distribution which such Limited Partner is required to return (in each case, whether pursuant to this Agreement or any AIV Agreement), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failuretime, then such Limited Partner will be designated a “Defaulting Limited Partner” and Member who has paid its Profit Ratio of the General Partner may, in its sole discretion, then required Additional Capital Contribution (a "Performing Member") may take any one or more all of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):actions:
(a) The General Partner may sell the Defaulting Limited Partner’s Interest or Take any portion thereof to any Partner, and all action (including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (ilitigation) 50% on behalf of the value Company or in the Performing Member's own right to obtain payment of the Defaulting Limited Partner’s Member's Additional Capital Contribution, together with interest in each Investmentthereon at the Default Interest Rate from the date the Additional Capital Contribution was due, measured by all at the Fair Value of each such Investment cost and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion expense of the Defaulting Limited Partner’s Capital Contributions attributable to each Investment and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the FundMember.
(b) The General Partner Make an advance to the Company in an amount up to the Additional Capital Contribution that the Defaulting Member failed to make. Such advance shall be treated as a loan to the Defaulting Member by the Performing Member (an "Interim Loan"), payable on demand with interest at the Default Interest Rate from the date such advance was made. If the Defaulting Member fails to repay the interim Loan with interest within fifteen (15) days after a written demand for payment, then the Performing Member may segregate elect by written notice to the Defaulting Member (a "Dilution Notice") to convert the Interim Loan and all accrued interest thereon to an Additional Capital Account Contribution and dilute the Profit Ratio of the Defaulting Limited Partner on Member. If the books performing Member elects to dilute the Profit Ratio of the FundDefaulting Member, and then the Defaulting Limited Partner thereafter will not Profit Ratio of the Members shall be allocated any portion of Net Income or Current Income (which will instead be allocated adjusted so that they are in proportion to their total Additional Capital Contributions to the non-defaulting Partners), or otherwise be taken account Company. For purposes of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until determining the completion voting tights of the dissolutionMembers, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to such adjustment shall be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account effective as of the date of the completion Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as of the dissolution, liquidation and termination first day of the Fund, less any costs and expenses (including month immediately following the costs of any borrowing) incurred by or on behalf date of the Fund in connection with such defaultDilution Notice. To the extent permitted by law, each If a Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition Member does not cure its default within six (6) Months of the Fund or bring any action for dissolution date of the FundDilution Notice, in each case, prior to the completion reallocation of the dissolution, liquidation Profit Ratio shall be permanent and termination the Defaulting Member shall not be permitted to subsequently cure the default and restore the prior Profit Ratio without the express prior written consent of the Fund.
(c) The General Partner Performing Member, which may withhold from and set off against any distribution otherwise payable to be granted or withheld in the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf discretion of the Fund in connection with such defaultPerforming Member.
Appears in 1 contract
Samples: Operating Agreement (TB Wood's INC)
FAILURE TO CONTRIBUTE. 3.5.1 Default 1. If any Limited a Partner fails to contribute timely all or any portion of make a capital contribution or other payment required Capital Contribution, the Partnership may exercise, on notice to be made by such Limited that Partner (the "Delinquent Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner is required to return (in each case, whether pursuant to this Agreement or any AIV Agreement"), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless remedies:
a. taking such action, at the Limited Partner has cured its failure to make cost and expense of the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):
(a) The General Partner may sell the Defaulting Limited Partner’s Interest or any portion thereof to any Delinquent Partner, including to obtain payment by the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% Delinquent Partner of the value of the Defaulting Limited Partner’s interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited Delinquent Partner’s 's Capital Contributions attributable Contribution that is in default, together with interest on that amount at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made;
b. permitting the Partners, in proportion to each Investment and on their Sharing Ratios or in such other terms percentages as they may agree (the General Partner may determine in its sole discretion. The proceeds of such sale will be applied"Lending Partner", firstwhether one or more), to advance the portion of the Delinquent Partner's Capital Contribution that is in default, with the following results:
(1) the sum advanced constitutes a loan from the Lending Partner to the Delinquent Partner and a Capital Contribution of that sum to the Partnership by the Delinquent Partner,
(2) the principal balance of the loan and all accrued unpaid interest is due and payable on the tenth day after written demand by the Lending Partner to the Delinquent Partner,
(3) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued, is repaid to the Lending Partner,
(4) all distributions from the Partnership that would be made to the Delinquent Partner shall be paid to the Lending Partner until the loan and all interest accrued have been paid in full,
(5) the payment of Management Fees the loan and interest accrued is secured by a security interest in the Delinquent Partner's Partnership Interest,
(6) the Lending Partner has the right, in addition to the other rights and remedies granted to it under this Agreement or at law or in equity, to take any action, at the cost and expense of the Delinquent Partner, that the Lending Partner may deem appropriate to obtain payment by the Delinquent Partner of the loan and all accrued and unpaid interest;
c. exercising the rights of a secured party under the Uniform Commercial Code of the State of
d. exercising any other rights and remedies available at law or in equity.
2. Each Partner grants to the Partnership, and to the Lending Partner with respect to which the Defaulting Limited Partner failed any loans made to make a Capital Contributionthat Partner, if anyas security, second, to equally and ratably for the payment of any costs all Capital Contributions that Partner has agreed to make and expenses incurred the payment of all loans and interest accrued made by Lending Partners to that Partner, a security interest in its Partnership Interest under the Fund or any Alternative Vehicle as a result Uniform Commercial Code of the Defaulting Limited Partner’s failure to contribute, and third, to State of Texas. On any default in the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.
(b) The General Partner may segregate the Capital Account of the Defaulting Limited Partner on the books of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income or Current Income (which will instead be allocated to the non-defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts a required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.
(c) The General Partner may withhold from and set off against any distribution otherwise payable to the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default.Capital
Appears in 1 contract
Samples: Partnership Agreement
FAILURE TO CONTRIBUTE. 3.5.1 Default If any Limited Partner fails to a Member does not contribute timely by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner Capital Contribution that Member is required to return make as provided in this Agreement, the Company may exercise, on notice to that Member (in each case, whether pursuant to this Agreement or any AIV Agreementthe “Defaulting Member”), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):remedies:
(a) The General Partner taking such action (including, without limitation, court proceedings) as the Managers may sell deem appropriate to obtain payment by the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% Member of the value of the Defaulting Limited Partner’s interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited PartnerMember’s Capital Contributions attributable to each Investment Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result expense of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.Member;
(b) The General Partner permitting the other Members in proportion to their Percentage Interests or in such other percentages as they may segregate agree (the Capital Account “Lending Member,” whether one or more), to advance the portion of the Defaulting Limited Partner Member’s Capital Contribution that is in default, with the following results:
(i) the sum advanced constitutes a loan from the Lending Member to the Defaulting Member and a Capital Contribution of that sum to the Company by the Defaulting Member pursuant to the applicable provisions of this Agreement,
(ii) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the books of tenth (10th) day after written demand therefor by the Fund, and Lending Member to the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income or Current Income Member,
(which will instead be allocated iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the non-defaulting Partners), Lending Member,
(iv) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and after termination of the Fund. Upon Company) instead shall be paid to the completion Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),
(v) the payment of the dissolutionloan and interest accrued on it is secured by a security interest in the Defaulting Member’s Membership Interest, liquidation as more fully set forth in paragraph 15.02 of this Agreement, and
(vi) the Lending Member has the right, in addition to the other rights and termination remedies granted to it pursuant to this Agreement or available to it at law or in equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the Fundloan and all accrued and unpaid interest on it, after at the payment in full cost and expense of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.Member;
(c) The General Partner may withhold from and set off against any distribution otherwise payable exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas;
(d) reducing the Defaulting Member’s Membership Interest or other interest in the Company;
(e) subordination of the Defaulting Member’s Membership Interest to the Defaulting Limited Partner the amount nondefaulting Member;
(f) a forced sale of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs Member’s Membership Interest at Fair Value and expenses upon the terms of purchase as provided in Article XIV;
(including the costs of any borrowingg) incurred by or on behalf forfeiture of the Fund Defaulting Member’s Membership Interest; or
(h) exercising any other rights and remedies available at law or in connection with such defaultequity.
Appears in 1 contract
FAILURE TO CONTRIBUTE. 3.5.1 Default If any Limited Partner fails to a Member does not contribute timely by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner Capital Contribution that Member is required to return make as provided in this Agreement, the Company may exercise, on notice to that Member (in each case, whether pursuant to this Agreement or any AIV Agreementthe "Defaulting Member"), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):remedies:
(a) The General Partner taking such action (including, without limitation, court proceedings) as the Managers may sell deem appropriate to obtain payment by the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% Member of the value of the Defaulting Limited Partner’s interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited Partner’s Member's Capital Contributions attributable to each Investment Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result expense of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.Member;
(b) The General Partner permitting the other Members in proportion to their Percentage Interests or in such other percentages as they may segregate agree (the Capital Account "Lending Member," whether one or more), to advance the portion of the Defaulting Limited Partner Member's Capital Contribution that is in default, with the following results:
(i) the sum advanced constitutes a loan from the Lending Member to the Defaulting Member and a Capital Contribution of that sum to the Company by the Defaulting Member pursuant to the applicable provisions of this Agreement,
(ii) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the books of tenth (10th) day after written demand therefor by the Lending Member to the Defaulting Member, __________________________________________________________________________________________ deeproot Growth Runs Deep Fund, and LLC ‐ Operating Agreement
(iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Member,
(iv) all distributions from the Company that otherwise would be made to the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income Member (whether before or Current Income (which will instead be allocated to the non-defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and after termination of the Fund. Upon Company) instead shall be paid to the completion Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),
(v) the payment of the dissolutionloan and interest accrued on it is secured by a security interest in the Defaulting Member's Membership Interest, liquidation as more fully set forth in paragraph 15.02 of this Agreement, and
(vi) the Lending Member has the right, in addition to the other rights and termination remedies granted to it pursuant to this Agreement or available to it at law or in equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the Fundloan and all accrued and unpaid interest on it, after at the payment in full cost and expense of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.Member;
(c) The General Partner may withhold from and set off against any distribution otherwise payable exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas;
(d) reducing the Defaulting Member's Membership Interest or other interest in the Company;
(e) subordination of the Defaulting Member's Membership Interest to the Defaulting Limited Partner the amount nondefaulting Member;
(f) a forced sale of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs Member's Membership Interest at Fair Value and expenses upon the terms of purchase as provided in Article XIV;
(including the costs of any borrowingg) incurred by or on behalf forfeiture of the Fund Defaulting Member's Membership Interest; or
(h) exercising any other rights and remedies available at law or in connection with such defaultequity.
Appears in 1 contract
Samples: Company Agreement (Deeproot Growth Runs Deep Fund, LLC)
FAILURE TO CONTRIBUTE. 3.5.1 Default If any Limited Partner fails to a Member does not contribute timely by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner Capital Contribution that Member is required to return make as provided in this Agreement, the Company may exercise, on notice to that Member (in each case, whether pursuant to this Agreement or any AIV Agreementthe “Defaulting Member”), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):remedies:
(a) The General Partner taking such action (including, without limitation, court proceedings) as the Managers may sell deem appropriate to obtain payment by the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% Member of the value of the Defaulting Limited Partner’s interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited PartnerMember’s Capital Contributions attributable to each Investment Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result expense of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.Member;
(b) The General Partner permitting the other Members in proportion to their Percentage Interest or in such other percentages as they may segregate agree (the Capital Account “Lending Member,” whether one or more), to advance the portion of the Defaulting Limited Partner Member’s Capital Contribution that is in default, with the following results:
(i) the sum advanced constitutes a loan from the Lending Member to the Defaulting Member and a Capital Contribution of that sum to the Company by the Defaulting Member pursuant to the applicable provisions of this Agreement,
(ii) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the books of tenth (10th) day after written demand therefor by the Fund, and Lending Member to the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income or Current Income Member,
(which will instead be allocated iii) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the non-defaulting Partners), Lending Member,
(iv) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and after termination of the Fund. Upon Company) instead shall be paid to the completion Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),
(v) the payment of the dissolutionloan and interest accrued on it is secured by a security interest in the Defaulting Member’s Membership Interest, liquidation as more fully set forth in paragraph 15.02 of this Agreement, and
(vi) the Lending Member has the right, in addition to the other rights and termination remedies granted to it pursuant to this Agreement or available to it at law or in equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Defaulting Member of the Fundloan and all accrued and unpaid interest on it, after at the payment in full cost and expense of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.Member,
(c) The General Partner may withhold from and set off against any distribution otherwise payable exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas;
(d) reducing the Defaulting Member’s Membership Interest or other interest in the Company;
(e) subordination of the Defaulting Member’s Membership Interest to the Defaulting Limited Partner the amount nondefaulting Member;
(f) a forced sale of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs Member’s Membership Interest at Fair Value and expenses upon the terms of purchase as provided in Article XIV;
(including the costs of any borrowingg) incurred by or on behalf forfeiture of the Fund Defaulting Member’s Membership Interest; or
(h) exercising any other rights and remedies available at law or in connection with such defaultequity.
Appears in 1 contract
FAILURE TO CONTRIBUTE. 3.5.1 Default (a) If any Limited Partner fails to a Member does not contribute timely by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner Capital Contribution that Member is required to return make as provided in these Regulations, the Company may exercise, on notice to that Member (in each case, whether pursuant to this Agreement or any AIV Agreementthe "Delinquent Member"), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):remedies:
(a) The General Partner may sell the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% taking such action (including, without limitation, court proceedings) as the Member may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's Capital Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Delinquent Member;
(ii) permitting the other Members in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Delinquent Member's Capital Contribution that is in default, with the following results:
(A) the sum advanced constitutes a loan from the Lending Member to the Delinquent Member and a Capital Contribution of that sum to the Company by the Delinquent Member pursuant to the applicable provisions of these Regulations,
(B) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the tenth day after written demand therefor by the Lending Member to the Delinquent Member,
(C) the amount lent bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Member,
(D) all distributions from the Company that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company) instead will be paid to the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),the payment of the loan and interest accrued on it is secured by a security interest in the Delinquent Member's Membership Interest, as more fully set in Section 4.03(b), and
(E) the Lending Member has the right, in addition to the other rights and remedies granted to it pursuant to these Regulations or available to it at law or in equity, to take any action (including, without limitation, court proceedings) that the Lending Member may deem appropriate to obtain payment by the Delinquent Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Delinquent Member;
(iii) exercising the rights of a secured party under the Uniform Commercial Code of the State of Texas, as more fully set forth in Section 4.03(b);
(iv) reducing the Delinquent Member's Membership Interest or other interest in the Company;
(v) subordination of the Delinquent Member's interest to the non- defaulting Member;
(vi) a forced sale of the Delinquent Member's interest; (vii)forfeiture of the Delinquent Member's interest;
(viii) determination of the value of the Defaulting Limited Partner’s Delinquent Member's interest in each Investment, measured by the Fair Value of each such Investment appraisal or by formula and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a redemption or sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited Partner’s Capital Contributions attributable to each Investment and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees interest at that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fund.
(b) The General Partner may segregate the Capital Account of the Defaulting Limited Partner on the books of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion of Net Income or Current Income (which will instead be allocated to the non-defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.
(c) The General Partner may withhold from and set off against any distribution otherwise payable to the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default.value; or
Appears in 1 contract
Samples: Operating Agreement
FAILURE TO CONTRIBUTE. 3.5.1 Default (a) If any Limited a Partner fails to contribute timely does not contribut~~ by the time required all or any portion of a capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Capital Contribution that Partner is required to return make as provided in this Agreement, the Partnership may exercise, on notice to that Partner (in each case, whether pursuant to this Agreement or any AIV Agreementthe "Delinquent Partner"), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions remedies: (unless i) taking such action (including, without limitation, court proceedings) as the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as applicable, for all costs and expenses incurred as a result of such failure):
(a) The Managing General Partner may sell deem appropriate to obtain paym~ nt by the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% Delinquent Partner of the value portion of the Defaulting Limited I)elinquent Partner’s 's Capital Contribution that is in default, together with interest in each Investmenton that amount at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, measured by all at the Fair Value cost and expense of each such Investment and the Defaulting Limited Delinquent Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and ; (ii) 50% of that permitting the Managing General Partner and, to thE extent the Managing General Partner does not elect to do so, the other Partners in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Partner," or "Lending Partners", if more than one), to advance the portion of the Defaulting Limited Delinquent Partner’s 's Capital Contributions attributable Contribution that is in default, with the following results: (A) the sum advanced constitutes the principa. of a loan from the Lending Partner to each Investment the Delinquent Partner and a Capital Contribution of that -13.. PTF-1 77R2S-OflO~2Q � sum to the Partnership by the Delinquent Partner under the applicable provisions of this Agreement, (B) the principal balance of the loan and all accrued unpaid interest is due and payable on such other terms as the General tenth day after written demand by the Lending Partner may determine to the Delinquent Partner, (C) the principal balance of the loan bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Partner, (D) all distributions from the Partnership that otherwise would be made to the Delinquent Partner (whether before or aft3r dissolution of the Partnership) instead shall be paid to the Lending Partner u ~til the loan, together with all interest accrued on it, have been paid in its sole discretion. The proceeds of such sale will be appliedfull to the Lending Partner (with payments being applied first to accrued and unpaid interest and then to principal), first, to (E) the payment of Management Fees with respect the loan and interest accrued on it is secured by a security interest in the Delinquent Partner's Partnership Interest, as more fully set forth in Section 4.03(b), and (F) the Lending Partner has the right, in addition to which the Defaulting Limited Partner failed other rights and remedies granted to make a Capital Contribution, if any, secondit under this Agreement or at la~ or in equity, to take any action (including, without limitation, court proceedings) that the Lending Partner may deem appropriate to obtain payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result Delinquent Partner of the Defaulting Limited Partner’s failure to contributeloan and all accrued and unpaid interest on it, at the cost and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination expense of the Investment Period on Delinquent Partner; (iii) exercising the sixth anniversary rights of a secured party under the lJniforrn Commercial Code of the commencement State of the Investment Period Texas, as more fully set forth in Section 4.03(b); or -14- ETF- I 737B2 5-000330 � (iv) exercising any other rights and liquidation of the investments remedies available it law or in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 3.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. Thereafter, the Defaulting Limited Partner will not be entitled to make any further Capital Contributions to the Fundequity.
(b) The General Each Partner may segregate grants to the Partnership, and to each Lending Partner with respect to any loans made by the Lending Partner to that Partner as a Delinquent Partner as described in Section 4.03(a)(ii), as security, equally and ratably, for the p.iyment of all Capital Account Contributions that Partner has agreed to make and the payment of a I loans and interest accrued on them made by Lending Partners to that Partner as a Delinquent Partner as described in Section 4.03(a)(ii), a security interest in and a general lien on its Partnership Interest and the proceeds of that Partnership Interest, all under the Unifo -m Commercial Code of the Defaulting Limited Partner State of Texas. On any default in the payment of a Capital Contribution or in the payment of such a loan or interest accrued on it, the books Partnership or the Lending Partner, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion State of Net Income or Current Income (which will instead be allocated Texas with respect to the non-defaulting Partners), or otherwise be taken account of security interest granted in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to be paid pursuant to Section 3.5.1(a) to Persons other than the Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the Fund or bring any action for dissolution of the Fund, in each case, prior to the completion of the dissolution, liquidation and termination of the Fund.
(c) The General Partner may withhold from and set off against any distribution otherwise payable to the Defaulting Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default.this Sec- tion 4.03
Appears in 1 contract
Samples: Limited Partnership Agreement
