Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. (a) If a Member fails to contribute all or any portion of a Capital Contribution that it is required to make in accordance with this Agreement, and such failure continues for five (5) Business Days after receipt by such Member of written notice thereof from the Company or any Member (a “Contribution Default”), then the non-Defaulting Member may (in its sole discretion) advance or contribute all or any portion of the amount of the Defaulting Member’s Capital Contribution that is the cause of the Contribution Default. If the non-Defaulting Member makes any such advance or contribution, (i) the amount of such advance or contribution and the amount of the non-Defaulting Member’s Capital Contribution for the applicable Capital Call shall be treated as a “Default Advance” or a “Default Contribution”, as the case may be, for purposes of this Agreement and (ii) the non-Defaulting Member shall notify the Company in writing as to whether the amounts paid by the Member constitute Default Advances or Default Contributions. In lieu of making a Default Advance or a Default Contribution, the non-Defaulting Member may request in writing that the Company return the non-Defaulting Member’s Capital Contribution for the applicable Capital Call, and the Company shall do so within five (5) Business Days of the non-Defaulting Member’s written request. (b) The amount of any Default Advance shall constitute a loan from the applicable non-Defaulting Member to the Company. The Default Advance shall bear interest, compounding quarterly, at the Default Interest Rate from the date on which the Default Advance is made until the date that the loan, together with all interest accrued thereon, is repaid to the non-Defaulting Member. The Default Advance and any interest thereon shall be paid by the Company to the non-Defaulting Member in accordance with Section 5.6(a)(i). (c) The amount of any Default Contribution shall constitute a Capital Contribution by the applicable non-Defaulting Member to the Company. Distributions with respect to the Default Contribution and the Priority Return with respect to the Default Contribution shall be made by the Company to the non-Defaulting Member in accordance with Section 5.6(a)(ii).

FAILURE TO CONTRIBUTE. (a) If a any Member (the "Non-Contributing Member") fails to contribute all make an Additional Property Acquisition Contribution or any portion of an Additional Capital Contribution within the specified time as provided in a Final Acquisition Proposal or a Capital Contribution that it is required to make Notice (in accordance with this Agreementeither case, and such failure continues for five (5) Business Days after receipt by such Member of written notice thereof from the Company or any Member (a “Contribution Default”"Deficiency"), then the nonother Member (i.e., the Member other than the Non-Defaulting Member may Contributing Member) (the "Contributing Member") may, in its sole discretionand absolute discretion within thirty (30) advance or contribute all or any portion of days after the amount of date the Defaulting Member’s Capital Contribution that is the cause of the Contribution Default. If the non-Defaulting Member makes any such advance or contributionDeficiency was required to be contributed, elect to either (i) the amount withdraw its share of such advance Additional Property Acquisition Contribution or contribution and the amount of the non-Defaulting Member’s Additional Capital Contribution for the applicable Capital Call shall be treated as a “Default Advance” or a “Default Contribution”, as the case may be, for purposes of this Agreement in which event the applicable Final Acquisition Proposal or Capital Contribution Notice shall be deemed cancelled and the Contributing Member's contribution shall be refunded to it, or (ii) pursuant to Section 8.5(b) below, lend to the non-Defaulting Company the entire amount of such Additional Property Acquisition Contribution or Additional Capital Contribution (the "Member Loan Option"). If the Contributing Member elects to exercise the Member Loan Option, then the amount previously advanced by the Contributing Member to the Company shall notify be treated as a portion of the Member Loan described in Section 8.5(b) below. If the Contributing Member fails, within such thirty (30) day period, to withdraw its portion of the Additional Property Acquisition Contribution or Additional Capital Contribution or fund the Deficiency to the Company in writing as to whether the amounts paid by exercise of the Member constitute Default Advances or Default Contributions. In lieu of making a Default Advance or a Default ContributionLoan Option, then the non-Defaulting Contributing Member may request in writing that the Company return the non-Defaulting Member’s Capital Contribution for the applicable Capital Call, shall be deemed to have elected to proceed under clause (i) above and the Company shall do so within five (5) Business Days of the non-Defaulting Member’s written request. (b) The amount of any Default Advance shall constitute a loan from the applicable non-Defaulting Member promptly return to the CompanyContributing Member its share of such Additional Property Acquisition Contribution or Additional Capital Contribution, as applicable. The Default Advance shall bear interestIn addition, compounding quarterly, at in the Default Interest Rate from event the date on which Contributing Member elects to withdraw its portion of an Additional Property Acquisition Contribution with the Default Advance is made until the date result that the loanproposed acquisition of a Target Property is terminated, together with the Non-Contributing Member shall promptly pay or reimburse all interest accrued thereon, is repaid to the non-Defaulting Member. The Default Advance Pursuit Costs and any interest thereon shall be paid forfeited exxxxxx money incurred by the Company or the Contributing Member in connection with the proposed acquisition and subsequent failure to acquire such Target Property, and shall not be entitled to reimbursement from the Company for any such costs to the nonextent incurred by such Non-Defaulting Member Contributing Member. Until such time as such amounts have been paid in accordance with Section 5.6(a)(i). (c) The amount of any Default Contribution shall constitute a Capital Contribution full by the applicable nonNon-Defaulting Contributing Member all distributions pursuant to this Agreement that would otherwise be paid to the Company. Distributions with respect Non-Contributing Member shall instead be paid to the Default Contribution and Company or the Priority Return with respect to Contributing Member, as applicable, in payment of such obligation on behalf of the Default Contribution shall be made by the Company to the nonNon-Defaulting Member in accordance with Section 5.6(a)(ii)Contributing Member.

FAILURE TO CONTRIBUTE. (a) If a Member fails to contribute all or its Proportionate Share of any portion of a Additional Capital Contribution that it is required within the 15-Business Day or the 5-Business Day periods described in Section 2.2 above (a “Noncontributing Member”) then the Company and/or the other Member may elect any of the following remedies: (a) The other Member may elect to make in accordance with a Deficit Contribution equal to the Noncontributing Member’s Proportionate Share of the Additional Capital Contribution. A Contributing Member who makes a Deficit Contribution under this AgreementSection 2.3(a) shall have the following remedies: (i) The Contributing Member may elect, and such failure continues for five (5) Business Days after receipt by such Member of written notice thereof to the other Member, to treat the Deficit Contribution as a loan from the Company or any Contributing Member to the Noncontributing Member (a “Contribution DefaultDefault Loan”). A Default Loan shall bear interest at the lesser of (x) the rate of twenty percent (20%) per annum, then cumulative but not compounded, or (y) the non-Defaulting maximum rate allowable by law. Unless and until the Contributing Member may (in its sole discretion) advance or contribute all or any portion elects to adjust the Percentage Interests and Capital Accounts of the amount of the Defaulting Member’s Capital Contribution that is the cause of the Contribution Default. If the non-Defaulting Noncontributing Member makes any such advance or contribution, (i) the amount of such advance or contribution and the amount of Contributing Member under the non-Defaulting Member’s Capital Contribution for following paragraph, the applicable Capital Call Default Loan shall be treated as a “capital contribution by the Noncontributing Member and shall be credited to its Capital Account Until the Default Advance” or Loan is paid in full, Company distributions that would otherwise be distributed to the Noncontributing Member shall be applied to the Default Loan. Such distributions shall be credited first to unpaid interest and then to the principal balance of the Default Loan, and shall be treated for accounting purposes as distributions to the Noncontributing Member. The Default Loan shall be a “recourse obligation of the Noncontributing Member, shall be a demand loan, and shall be due and payable in full 30 days after written demand for payment is received by the Noncontributing Member. As collateral for a Default Contribution”Loan, the Contributing Member shall have a first priority lien upon and security interest in the Noncontributing Member’s Membership Interest, and the Contributing Member shall have all rights of a secured creditor with respect to the Noncontributing Member’s Membership Interest. The preceding sentence is intended to constitute a security agreement within the meaning of Article 9 of the Uniform Commercial Code. Each Member agrees that the Contributing Member may execute such documents and instruments, including but not limited to UCC Financing Statements, as the case Contributing Member determines to be necessary to perfect the foregoing security interest; or (ii) The Contributing Member may beelect, by written notice to the other Member, to adjust the Capital Accounts and the Percentage Interests of the Contributing Member and the Noncontributing Member, as follows: (1) calculate the “Adjustment Amount” by multiplying the Deficit Contribution by four (4); (2) reduce the Noncontributing Member’s Capital Account (but not below zero) by the Adjustment Amount; (3) increase the Contributing Member’s Capital Account by the amount of the reduction of the Noncontributing Member’s Capital Account; and (4) adjust each Member’s Percentage Interest to the ratio, expressed as a percentage, of its adjusted Capital Account divided by the total adjusted Capital Accounts of both Members. For purposes of the adjustments described in this Section 2.3(a)(ii), the Members’ Capital Accounts shall be determined as of the end of the most recent fiscal quarter and shall be adjusted for any subsequent distributions and contributions, including Deficit Contributions, and for year-to-date income or loss. (iii) The Contributing Member shall have the right until repayment in full of the Default Loan to elect to adjust the Percentage Interests and Capital Accounts, as described in Section 2.3(a)(ii) above. Until such election is made, the Deficit Contribution shall be a Default Loan. At the time the election is made, for purposes of this Agreement and (ii) calculating the non-Defaulting Member Adjustment Amount the “Deficit Contribution” shall notify be equal to the Company in writing as to whether then unpaid principal balance of the amounts paid Default Loan. If the election is made, the Noncontributing Member’s Capital Account shall be reduced, but not below zero, by the unpaid principal balance of the Default Loan and the Contributing Member’s Capital Account shall be increased by the same amount. Any accrued interest on the Default Loan shall be paid to the Contributing Member constitute Default Advances or Default Contributionsout of distributions that otherwise would be paid to the Noncontributing Member. In lieu Example: Assume each of making the Members has a Default Advance or Capital Account of $45 million and a Default ContributionPercentage Interest of 50%, the non-Defaulting Member may request in writing and that the Company return the non-Defaulting Memberrequires Additional Capital Contributions of $3 million. Assume that Member A fails to contribute, and Member B makes its $1.5 million contribution and also makes a $1.5 million Deficit Contribution. Member A’s Capital Account would be reduced from $45 million to $39 million ($45 million – [$1.5 million x 4]) and its Percentage Interest would be reduced to 41.94% ($39 million ÷ $93 million). Member B’s Capital Account would be increased to $54 million ($45 million + $1.5 million Additional Capital Contribution for the applicable + $1.5 million Deficit Contribution + $6 million reduction in Member A’s Capital Call, Account) and the Company shall do so within five (5) Business Days of the non-Defaulting Member’s written requestits Percentage Interest would be increased to 58.06%. (b) The amount Company may bring an action to enforce the obligation of any Default Advance shall constitute a loan from the applicable non-Defaulting Noncontributing Member to make Its Proportionate Share of the Company. The Default Advance shall bear interest, compounding quarterly, at the Default Interest Rate from the date on which the Default Advance is made until the date that the loanAdditional Capital Contribution, together with all interest accrued thereon, is repaid to the non-Defaulting Member. The Default Advance and any interest thereon shall be paid by at the Company to the non-Defaulting Member in accordance with Section 5.6(a)(i)Interest Rate. (c) The amount nondefaulting Member may purchase the Membership Interest of any Default Contribution shall constitute a Capital Contribution by the applicable non-Defaulting Noncontributing Member pursuant to the Company. Distributions with respect to the Default Contribution and the Priority Return with respect to the Default Contribution shall be made by the Company to the non-Defaulting Member in accordance with provisions of Section 5.6(a)(ii)8.2 below.

FAILURE TO CONTRIBUTE. (a) If a Member fails is in Default as a result of its failure to contribute all or any portion of a Capital Contribution that it such Member (“Delinquent Member”) is required to make as provided in accordance with this Agreement, and such failure continues for five any one or more of the other Members (5) Business Days after receipt by such Member of written notice thereof from the Company or any Member (each a “Contribution DefaultNon-Delinquent Member”), then ) may advance the non-Defaulting Member may (in its sole discretion) advance or contribute all or any portion of the entire amount of the Defaulting Delinquent Member’s Capital Contribution that is the cause of the Contribution Default. If the non-Defaulting Member makes any such advance or contribution, (i) the amount of such advance or contribution and the amount of the non-Defaulting Member’s in Default as a Capital Contribution for the applicable Capital Call shall be treated as a “Default Advance” or a (“Default Contribution”), as with each Non-Delinquent Member having the case may be, for purposes right to participate by making its share of this Agreement and such advance in proportion to its Percentage Interest (ii) without taking into account the Percentage Interests of the Delinquent Member or the non-Defaulting Member shall notify participating Non-Delinquent Members) or in such other percentages as the Company in writing as to whether the amounts paid by the Member constitute Default Advances or Default Contributions. In lieu of making a Default Advance or a Default Contribution, the nonparticipating Non-Defaulting Member Delinquent Members may request in writing that the Company return the non-Defaulting Member’s Capital Contribution for the applicable Capital Call, and the Company shall do so within five (5) Business Days of the non-Defaulting Member’s written requestagree. (b) The amount Company shall automatically adjust the Percentage Interest for each Member on the date the Default Contribution is made. Upon the adjustment set forth in the preceding sentence, (i) Exhibit A shall be deemed to be amended to reflect such adjusted Percentage Interests and (ii) the Default of any Default Advance shall constitute the Delinquent Member arising as a loan from result of its failure to make the applicable non-Defaulting Member to the Company. The Default Advance shall bear interest, compounding quarterly, at the Default Interest Rate from the date on which the Default Advance is made until the date that the loan, together with all interest accrued thereon, is repaid to the non-Defaulting Member. The Default Advance and any interest thereon Capital Contribution shall be paid by the Company to the non-Defaulting Member in accordance with Section 5.6(a)(i)deemed cured. (c) The amount of With respect to the failure to make any Default Contribution shall constitute a required Capital Contribution by for any purpose, any Non-Delinquent Member shall have the applicable non-Defaulting Member right to exercise the Company. Distributions following remedies with respect to the Default Contribution and the Priority Return with respect a Delinquent Member in addition to the Default Contribution shall be made rights granted by Sections 4.2(a) and 13.13: (i) such Non-Delinquent Member may at any time take such action (including court proceedings) as such Non-Delinquent Member may deem appropriate to obtain payment by the Company to Delinquent Member of the nonportion of the Delinquent Member’s Capital Contribution that is in Default, along with all costs and expenses associated with the collection of such Delinquent Member’s Capital Contribution; and (ii) such Non-Defaulting Delinquent Member may at any time exercise any other rights and remedies available under this Agreement or at law or in accordance with Section 5.6(a)(ii)equity.

FAILURE TO CONTRIBUTE. (a) If by the required date under any approved Cash Notice, a Member fails (the “Non-Contributing Member”) shall fail to contribute pay all or any part of its Requested Amount, the other Member or Members (each, a “Contributing Member”) (i) may pay to the Company as a Contribution the portion of the Requested Amount not paid by the Non-Contributing Member (the “Deficiency”), as provided in subsection (b) below, (ii) may advance directly to the Company the Deficiency as a Capital Contribution recourse loan to the Company, as provided in subsection (c) below or (iii) may treat the Non-Contributing Member’s failure to contribute as a default under this Agreement (and as a Terminating Event as to the Non-Contributing Member). If there is more than one Contributing Member, the payment or advance of the Deficiency described above shall be proportionate to each such Member’s Proportionate Share, provided that it if any Contributing Member does not elect to pay or advance its full share of the Deficiency pursuant to clause (i) or (ii) above, such Contributing Member shall be treated as a Non-Contributing Member with respect to such share of the Deficiency and the other Contributing Member or Members may pay or advance the additional portion of the Deficiency pursuant to clause (i) or (ii) above. Subject to Section 6.2, the remedies set forth in clauses (i), (ii) and (iii) shall be the exclusive remedies of the Contributing Member or Members for a Non-Contributing Member’s failure to pay or advance additional capital as required by this Agreement; if the Contributing Members avail themselves of either of the remedies in clauses (i) or (ii) above, the Non-Contributing Member’s failure shall not otherwise be treated as a default under this Agreement. If there is required more than one Contributing Member, the election to proceed under clause (i) or clause (ii) above shall require the unanimous decision of the Contributing Members; in the absence of such unanimity, the Contributing Members shall proceed under clause (ii). (b) In the event the Contributing Members elect to pay the Deficiency to the Company as a Contribution, then, effective as of the date of the payment, both the portion of the Deficiency so paid together with all Requested Amounts previously paid by the Contributing Member or Members in connection with the Cash Notice shall be deemed Contributions, and the Proportionate Shares of each of the Members shall be recalculated as follows: each Member’s Proportionate Share shall be adjusted to a percentage obtained by dividing such Member’s aggregate Contributions (including the Deficiency Contribution) as of such date by the total amount of the Contributions by all Members as of such date. (c) If the Contributing Member or Members elect to make in accordance with this Agreement, and such failure continues for five (5) Business Days after receipt by such Member of written notice thereof from a loan to the Company as provided above, both the portion of the Deficiency so advanced, together with all Requested Amounts previously paid or any advanced by the Contributing Member or Members in connection with the Cash Notice (regardless of their initial characterization), shall be directly advanced to the Company by the Contributing Member or Members as a demand, recourse loan (a “Contribution DefaultDeficit Loan”). Each Deficit Loan shall bear interest at an annual rate of 20% (or, if lower, the maximum rate allowed by applicable law), compounded monthly, and shall be payable on demand. Any payments on a Deficit Loan shall be credited first to any interest then due on the non-Defaulting loan with the balance of such distributions to be credited against the outstanding principal balance of such loan. (d) If a Deficit Loan is not repaid in full within 30 days following demand at the election of the Contributing Member may or Members, the loan may, at any time thereafter, be converted to an additional Contribution to the Company by the Contributing Member or Members in the amount of the sum of the then outstanding balance of principal and interest on the Deficit Loan, and the Proportionate Shares of the Members shall be adjusted pursuant to the formula set forth in subsection (in its sole discretionb) advance or contribute all or any portion above based on the Contributing Member’s contribution of the amount of the Defaulting Member’s Capital Contribution that is the cause of the Contribution Default. If the non-Defaulting Member makes any such advance or contribution, (i) the amount of such advance or contribution and the amount of the non-Defaulting Member’s Capital Contribution for the applicable Capital Call shall be treated as a “Default Advance” or a “Default Contribution”, as the case may be, for purposes of this Agreement and (ii) the non-Defaulting Member shall notify the Company in writing as to whether the amounts paid by the Member constitute Default Advances or Default Contributions. In lieu of making a Default Advance or a Default Contribution, the non-Defaulting Member may request in writing that the Company return the non-Defaulting Member’s Capital Contribution for the applicable Capital Call, and the Company shall do so within five (5) Business Days of the non-Defaulting Member’s written requestDeficit Loan. (b) The amount of any Default Advance shall constitute a loan from the applicable non-Defaulting Member to the Company. The Default Advance shall bear interest, compounding quarterly, at the Default Interest Rate from the date on which the Default Advance is made until the date that the loan, together with all interest accrued thereon, is repaid to the non-Defaulting Member. The Default Advance and any interest thereon shall be paid by the Company to the non-Defaulting Member in accordance with Section 5.6(a)(i). (c) The amount of any Default Contribution shall constitute a Capital Contribution by the applicable non-Defaulting Member to the Company. Distributions with respect to the Default Contribution and the Priority Return with respect to the Default Contribution shall be made by the Company to the non-Defaulting Member in accordance with Section 5.6(a)(ii).

FAILURE TO CONTRIBUTE. (a) If a Member fails to contribute by the time required all or any portion of a an Additional Capital Contribution that it such Member (the "Delinquent Member") is required to make as provided in accordance with this Agreement, and such failure continues for five the Company, at the direction of the other Member (5) Business Days after receipt by such Member of written the "Non-Defaulting Member"), or the Non-Defaulting Member, may, on notice thereof from to the Delinquent Member, deliver to the Company or any Member (a “Contribution Default”), then the non-Defaulting Member may (in its sole discretion) advance or contribute all or any portion of the amount of the Defaulting Delinquent Member’s 's Additional Capital Contribution that is not paid by the cause Delinquent Member. Such payment shall be, at the option of the Contribution Default. If Company or the nonNon-Defaulting Member makes any such advance or contribution, (i) the amount of such advance or contribution and the amount of the non-Defaulting Member’s Capital Contribution for the applicable Capital Call shall be treated as a “Default Advance” or a “Default Contribution”making payment, as the case may be, either in the form of a loan to the Delinquent Member or a contribution to the capital of the Company. The Company or the Non-Defaulting Member, as the case may be, may plead for purposes relief under one or more of this Agreement and (ii) such remedies in any arbitration or judicial proceeding; provided, however, to the nonextent the Company or the Non-Defaulting Member shall notify the Company in writing exercises one of such remedies as to whether the amounts paid by the Member constitute Default Advances or Default Contributions. In lieu of making a Default Advance all or a Default Contributionportion of the Additional Capital Contribution that is in default and receives the payment, adjustment, or other relief provided for in connection with such remedy, the nonDelinquent Member shall not be liable in any event for more than the obligation that is owed. (i) If the Non-Defaulting Member may request in writing that advances the Company return the non-Defaulting Delinquent Member’s 's Additional Capital Contribution for that is in default as a loan, such loan will be made under the applicable Capital Call, and following the Company shall do so within five provisions: (51) Business Days the principal balance of the non-Defaulting Member’s loan and all accrued unpaid interest thereon shall be due and payable in whole on the tenth day after written request. (b) The amount of any Default Advance shall constitute a loan from demand therefore by the applicable nonNon-Defaulting Member to the Company. The Default Advance Delinquent Member, provided, however, that the demand for payment of such loan may not be made until after the date that is six months after the date such loan is made; (2) the amount loaned shall bear interest, compounding quarterly, interest at the Default Contract Interest Rate plus 5% from the date on which day that the Default Advance advance is deemed made until the date that the loan, together with all interest accrued thereonon it, is repaid to the nonNon-Defaulting Member. The Default Advance ; (3) all distributions from the Company that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company and any interest thereon whether before or after demand for payment is made pursuant to the immediately preceding subsection (1)) instead shall be paid by the Company to the nonNon-Defaulting Member until the loan and all interest accrued on it have been paid in accordance full to the Non-Defaulting Member (with Section 5.6(a)(ipayments being applied first to accrued and unpaid interest and then to principal); and (4) the payment of the loan and interest accrued on it shall be secured by a security interest in the Delinquent Member's membership interest. (cii) The amount of any Default Contribution shall constitute A contribution made to the Company and designated as a Capital Contribution capital contribution by the applicable nonNon-Defaulting Member shall be credited to the CompanyCapital Account of the Non-Defaulting Member making the contribution. Distributions with respect to The Ownership Percentage of the Default Contribution and the Priority Return with respect to the Default Contribution Delinquent Member shall be reduced by the number of percentage points determined by the following formula: Unpaid Additional Capital Contribution of Delinquent Member ----------------------------------------------------------- Total Capital Contributions by All Members (iii) For purposes of this Section 3.3, "Total Capital Contributions by All Members" means the aggregate capital contributions of the Members (including the capital contribution made by the Company to the nonNon-Defaulting Member in accordance with pursuant to this Section 5.6(a)(ii)3.3 on its own behalf and on behalf of the Delinquent Member) since inception of the Company.