Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. If a Member (a "Defaulting Member") fails to make any Additional Capital Contribution in full within the required time, then a Member who has paid its Profit Ratio of the required Additional Capital Contribution (a "Performing Member") may take any or all of the following actions: (a) Take any and all action (including litigation) on behalf of the Company or in the Performing Member's own right to obtain payment of the Defaulting Member's Additional Capital Contribution, together with interest thereon at the Default Interest Rate from the date the Additional Capital Contribution was due, all at the cost and expense of the Defaulting Member. (b) 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 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 Contribution and dilute the Profit Ratio of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio of the Defaulting Member, then the Profit Ratio of the Members shall be adjusted so that they are in proportion to their total Additional Capital Contributions to the Company. For purposes of determining the voting tights of the Members, such adjustment shall be effective as of the date of the Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as of the first day of the month immediately following the date of the Dilution Notice. If a Defaulting Member does not cure its default within six (6) Months of the date of the Dilution Notice, the reallocation of the Profit Ratio shall be permanent and 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 Performing Member, which may be granted or withheld in the discretion of the Performing Member.

FAILURE TO CONTRIBUTE. If a (a) In the event that any Member (each, a "Defaulting “Non-Contributing Member"”) fails to timely make some or all of any Additional Capital Contribution required to be made by such Member pursuant to Section 3.4 (or fails to post a Letter of Credit in the amount of such Capital Contribution in full within circumstances where such posting would satisfy the required timeMembers obligations under the Capital Call Notice) (in each case, a “Shortfall Amount”), and such failure continues for a period of five (5) Business Days after receipt by such Non-Contributing Member of written notice from any other Member specifying such failure, then DLJMB (in the case that the Non-Contributing Member is a Morgans Party) or Morgans Co. (in the case that the Non-Contributing Member who has paid is a DLJMB Party) may, in its Profit Ratio sole discretion, take, or cause a DLJMB Party or Morgans Party, respectively, to take, any of the required Additional following actions (the Person taking such action or caused to take such action being the “Contributing Member”): (i) make additional Capital Contribution Contributions (or post a "Performing Member"Letter of Credit in lieu thereof, if permitted) may take any (“Shortfall Contributions”) equal to some or all of the following actions: Shortfall Amount (a) Take any and all action (including litigation) on behalf of the Company or in the Performing Member's own right to obtain payment of the Defaulting Member's Additional Capital Contributionwhich case, together with interest thereon at the Default Interest Rate from the date the Additional Capital Contribution was due, all at the cost and expense of the Defaulting Member. (b) Make an advance subject to the Company in an amount up receipt of all approvals required under Gaming Regulations (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"extent applicable at such time), 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 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 Contribution and dilute the Profit Ratio of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio of the Defaulting Member, then the Profit Ratio relative Percentage Interests of the Members shall be adjusted so pursuant to Section 3.5(d)); (ii) loan to the Company some or all of the Shortfall Amount (a “Company Loan”), provided that: (i) the sums thus advanced shall be deemed to be demand recourse loans from the Contributing Member to the Non-Contributing Member and a contribution of such sums to the Company by the Non-Contributing Member; (ii) such loans shall bear interest at the rate of interest equal to LIBOR, plus six percent (6%) per annum, (provided, however, that they are if at any time the interest rate provided for herein (the “Note Rate”) exceeds the Maximum Rate, the Note Rate shall be limited to the Maximum Rate, but any subsequent reductions in proportion the Note Rate (i.e., by reason of a reduction in the LIBOR) shall not reduce the rate of interest accruing hereunder below the Maximum Rate until such time as the total amount of interest accrued and paid on such loan equals the amount that would have accrued on such loan if the Note Rate had at all times been in effect), from the date that the advance was made until the date that such advance, together with any reasonable costs and expenses incurred by the Company as a result of the Non-Contributing Member’s failure to their total Additional contribute, and together with all interest accrued thereon, is repaid to the Contributing Member and the Company, as appropriate; (iii) unless otherwise paid, the repayment of such Company Loan shall be made from any distribution or reimbursement from the Company otherwise to be made to the Non-Contributing Member before any distribution or reimbursement is made to the Non-Contributing Member during the existence of the Company or after dissolution; and (iv) all such repayments shall be first applied to any reasonable costs and expenses incurred by the Company as a result of the Non-Contributing Member’s failure to contribute, then to interest earned and unpaid on the advance, and then to principal; and (iii) if a DLJMB Party is a Contributing Member, DLJMB may secure New Financing and/or New Equity for the Company pursuant to Section 3.9. (b) No right, power or remedy conferred upon any Member (other than the Non-Contributing Member) in this Section 3.5 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 3.5, Article 11, pursuant to any other provision of this Agreement, or now or hereafter available at law or in equity or by statute or otherwise. In addition, and notwithstanding anything to the contrary in Section 11.1(c), if such failure of the Non-Contributing Member to make the required Capital Contribution continues for a period of ninety (90) days following notice thereof given by the Contributing Member to the Non-Contributing Member, and the Contributing Member has not theretofore made a Shortfall Contribution or delivered a Conversion Notice pursuant to Section 3.5(c) below with respect to such Capital Contribution, then (and only in such event) the Contributing Member may treat the failure of the Non-Contributing Member to make the required Capital Contribution as an Event of Default, and the Non-Contributing Member as a Defaulting Member, under Section 11.1(c). (c) Provided that the Contributing Member has not elected to treat the failure of the Non-Contributing Member to make the required Capital Contribution (or failure to post a Letter of Credit in circumstance where such posting would satisfy the Members’ obligations under the Capital Call Notice) as an Event of Default pursuant to Section 3.5(b) above, then with respect to any Company Loan made in connection with a Shortfall Amount, in the event that a Contributing Member shall have made a Company Loan and the Company Loan (plus all accrued and unpaid interest thereon) shall not have been repaid in full (either by the Non-Contributing Member or by the Company out of distributions to which the Non-Contributing Member would otherwise be entitled) within ninety (90) days after the making of such Company Loan, any Contributing Member may, by delivering a notice (the “Conversion Notice”) to the Non-Contributing Member at any time after the expiration of such ninety (90) day period, elect to terminate such Company Loan, convert the Company Loan to equity and have the Non-Contributing Member’s Percentage Interest reduced as set forth in clause (d) below; provided, however, that the Non-Contributing Member shall have the right during the ten (10) day period following the delivery by the Contributing Member of the Conversion Notice to repay in full the Company Loan or the unpaid portion thereof (together with all accrued and unpaid interest earned thereon), and if such repayment shall occur within such ten (10) day period, the Contributing Member shall have no further rights under this Section 3.5(c) with respect to such Company Loan. (d) If a Contributing Member makes a Shortfall Contribution pursuant to Section 3.5(a)(i) or elects to terminate a Company Loan pursuant to Section 3.5(c) and the Non-Contributing Member shall fail to repay in full to the Contributing Member the unpaid portion of the Company Loan (plus all accrued and unpaid interest thereon) (with such amounts also treated as Shortfall Contributions) within the ten (10) day period referred to in such Section 3.5(c), then, subject to the receipt of all approvals required under Gaming Regulations (to the extent applicable at such time), the Percentage Interest of the Contributing Member shall be increased by adding to such Percentage Interest an additional percentage, stated as a fraction, the numerator of which is equal to 150% of the Shortfall Contribution and the denominator of which is equal to the sum of (i) the Existing Equity immediately prior to the making of the Capital Contributions (and/or other increases in Committed Capital) of which the Shortfall Contribution was a part, plus (ii) the aggregate Capital Contributions (and/or other increases in Committed Capital) being made in connection with which the Shortfall Contribution was made. Subject to the Company. For purposes receipt of determining all approvals required under Gaming Regulations (to the voting tights extent applicable at such time), the Percentage Interest of the Members, such adjustment Non-Contributing Member shall be effective as of reduced by the date of percentage by which the Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as of Contributing Member’s Percentage Interest is increased pursuant to the first day of the month immediately following the date of the Dilution Notice. If a Defaulting Member does not cure its default within six (6) Months of the date of the Dilution Notice, the reallocation of the Profit Ratio shall be permanent and 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 Performing Member, which may be granted or withheld in the discretion of the Performing Memberpreceding sentence.

FAILURE TO CONTRIBUTE. 3.3.1 If any Member fails to contribute timely all or any portion of any Capital Contribution required to be made by such Member pursuant to this Agreement and such failure continues for a period of five (5) Business Days after receipt by such Member (such Member being hereinafter referred to as a "Defaulting MemberDELINQUENT MEMBER") fails of notice from the Managing Members specifying such failure (such failure being hereinafter referred to make any Additional Capital Contribution in full within the required timeas a "DEFAULT"), then the Managing Members (or, in the event a Managing Member who has paid its Profit Ratio is the Delinquent Member, the other Managing Member or, in the event both Managing Members are the Delinquent Members, a Majority in Interest of the required Additional Capital Contribution (a "Performing Member"other Members) may may, at their option, take any one or all more of the following actions: (a) Take any and all such action (including litigationincluding, without limitation, the filing of a suit) on behalf of the Company or in the Performing Member's own right as they deem appropriate to obtain payment by the Delinquent Member of the Defaulting Member's Additional that portion of its Capital ContributionContribution which is in default, together with interest thereon at the Default Interest Rate rate of interest equal to five percent (5%) per annum plus the prime rate listed from time to time in ---- Xxx Xxxx Xxxxxx Journal (which listing appears as of the ----------------------- date hereof under the caption "Money Rates") or, if such listing is no longer published, then the reference rate offered at such time by the Bank of America XX&XX, measured from the date the Additional that such Capital Contribution was duedue until the date that such Capital Contribution, together with any costs and expenses incurred by the Company as a result of the Default, and together with all interest accrued thereon, is paid to the Company. Until all such amounts have been paid, all at distributions that would otherwise be made to such Delinquent Member shall be withheld in partial satisfaction of such obligations and shall be first applied to any costs and expenses incurred by the cost and expense Company as a result of the Defaulting Member.Default, then to interest earned and unpaid, and then to principal; (b) Make an advance Advance on a pro rata basis based upon the relative Percentage Interests of the participating Members, that portion of such contribution which is in default, on the following terms: (A) the sums thus advanced shall be deemed to be demand recourse loans from the Members participating therein to the Delinquent Member and a Capital Contribution of such sums 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 Delinquent Member; (an "Interim Loan"), payable on demand with B) such loans shall bear interest at the Default Interest Rate rate of interest equal to five percent (5%) per annum plus the prime rate listed ---- from the date such advance was made. If the Defaulting Member fails time to repay the interim Loan with interest within fifteen time in The Wall Street Journal (15) days after a written demand for payment, then the Performing Member may 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 Contribution and dilute the Profit Ratio of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio of the Defaulting Member, then the Profit Ratio of the Members shall be adjusted so that they are in proportion to their total Additional Capital Contributions to the Company. For purposes of determining the voting tights of the Members, such adjustment shall be effective which listing ----------------------- appears as of the date hereof under the caption "Money Rates") or, if such listing is no longer published, then the reference rate offered at such time by the Bank of America NT&SA, measured from the date that the advance was made until the date that such advance, together with any costs and expenses incurred by the Company as a result of the Dilution NoticeDefault, and together with all interest accrued thereon, is repaid to the Members; for purposes (C) unless otherwise paid, the repayment of allocating income and loss, such adjustment these loans shall be effective as made from any and all distributions of the first day Company otherwise to be made to the Delinquent Member, with the full amount of such loan (plus all accrued interest thereon) to be refunded in full before any distribution is made to the Delinquent Member during the term of the month immediately following Company or upon dissolution; and (D) all such repayments shall be first applied to any costs and expenses incurred by the date Company as a result of the Dilution Notice. If Default, then to interest earned and unpaid, and then to principal; (c) Unless the Delinquent Member shall have theretofore cured its failure to make the required Capital Contribution (and reimbursed the Company for all costs and expenses incurred as a Defaulting Member does not cure its default within six result of such Default), sell the Delinquent Member's interest in the Company to the other Members wishing to participate (6other than the Delinquent Member) Months on a pro rata basis based upon the relative Percentage Interests of the date other participating Members or to any other Person, to the extent the Members fail to purchase their pro rata share, without further notice to the Delinquent Member on the terms and for such consideration as the contributing Member(s) may determine in its sole and absolute discretion. Proceeds from any such sale shall be retained by the Company or the Members (as the case may be) to the extent of the Dilution Noticeamount, the reallocation including interest, costs and expenses (including, without limitation, any and all costs and expenses incurred as a result of the Profit Ratio Default), then owing to the Company or the Members (as the case may be) (the Delinquent Member remaining liable for any deficiency); any excess shall be permanent paid to the Delinquent Member; and/or (d) Exercise such other rights and remedies to which the Defaulting Member shall not be permitted to subsequently cure contributing Member(s) or the default and restore the prior Profit Ratio without the express prior written consent of the Performing Member, which Company may be granted entitled at law or withheld in the discretion of the Performing Memberequity or by statute. 3.3.2 No right, power or remedy conferred pursuant to this Paragraph --------- 3.3 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Paragraph 3.3 or --------- now or hereafter available at law or in equity or by statute or otherwise.

FAILURE TO CONTRIBUTE. If a any Member (a "Defaulting Member") fails or refuses for any reason to make in a timely manner any Additional Capital Contribution in full within the required time, then a Member who has paid its Profit Ratio of the required Additional Capital Contribution (a "Performing Member") may take any part or all of a Required Contribution, such Member shall be in default hereunder and shall be deemed to be a “Defaulting Member” to the extent of the unpaid part of the Required Contribution (the “Unpaid Required Contribution”). For a period often (10) days after the earlier of the expiration of the thirty (30) day period described in Section 3.3 or notice to Xxxxxx X. Xxxxxxx from the Defaulting Member that the Defaulting Member shall not make all or any portion of the Additional Capital Contribution, Xxxxxx X. Xxxxxxx, as Class A Member, shall have the right — but not the obligation — to make all or such part of the Unpaid Required Contribution as he so determines. In the event or to the extent Xxxxxx X. Xxxxxxx does not make all of the Unpaid Required Contribution, for a period of ten (10) days after the earlier of the expiration of the ten (10) day period described in the preceding sentence or Xxxxxx X. Xxxxxxx’ giving notice to the other Members holding Class B Units of his intention not to make the entire Unpaid Required Contribution, Members holding Class B Units other than the Defaulting Member shall have the right — but not the obligation — to make a proportion of the remaining Unpaid Required Contribution equal to the proportion that the number of Class B Units held by such Member bears to the total issued and outstanding Class B Units (excluding those held by the Defaulting Member). In the event any portion of the Unpaid Required Contribution remains unmade at the end of the ten (10) day period described in the immediately preceding sentence, the following actionsshall apply: (a) Take any The Unpaid Required Contribution shall constitute an obligation of such Defaulting Member to the Company and all action (including litigation) on behalf shall bear interest from the from the [sic?] expiration of the thirty (30) day period described in Section 3.3 at a floating annual rate of interest equal to the lesser of (i) eight percent (8%), or (ii) the maximum rate permitted by law. Interest shall be compounded monthly. The Company or may upon the decision of a Majority in Interest (determined by excluding all of the Performing Member's own right to obtain payment Units of the Defaulting Member's Additional Capital Contribution), together with interest thereon at institute suit in any court of competent jurisdiction to enforce such obligation of the Default Interest Rate from Defaulting Member. In addition, the date Company shall be entitled to recover in such suit all costs and expenses, including, but not limited to, court costs and reasonable attorneys’ fees, thereby incurred by the Additional Capital Contribution was due, all at Company and any damages (except incidental or consequential damages) sustained by the cost and expense Company as a result of the default by the Defaulting Member. (b) Make an advance By executing this Agreement, each Member shall be deemed to have granted to the Company in an amount up a first and prior lien and security interest upon such Member’s Units as security for the payment of all Required Contributions of such Member. This Agreement shall be deemed to be a security agreement with respect to such security interest and collateral and each Member shall promptly execute and deliver to the Additional Capital Contribution Company any financing statements or other instruments that the Company, or any other Member, may request for purposes of perfecting or continuing such security interest. Upon the failure of a Member to execute and deliver such financing statements or other instruments, the other Members, and each of them, as attorney-in-fact for such Member, may execute and deliver such financing statements or other instruments for, in the name and on behalf of such Member. With respect to a Defaulting Member failed to make. Such advance shall be treated as Member, the Company, acting upon the decisions of a loan to Majority in Interest (determined by excluding all of 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 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 Contribution and dilute the Profit Ratio Units of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio ), shall have all of the Defaulting Memberrights and remedies of a secured party under the Colorado Uniform Commercial Code, then the Profit Ratio of the Members shall be adjusted so that they are including, without limitation, and in proportion to their total Additional Capital Contributions addition to the Company. For purposes of determining rights under such law, the voting tights of the Membersright to sell, such adjustment shall be effective as of the date of the Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as of the first day of the month immediately following fiscal quarter in which the default occurs or such subsequent date as the Company may determine, by public or private sale upon five (5) days advance notice to the Defaulting Member, the Defaulting Member’s Units or any part thereof, and the Company and the other Members shall be permitted purchasers at any such sale. In addition, the Company shall have the right to retain and set-off against the Unpaid Required Contribution of the Dilution Notice. If a Defaulting Member does not cure its default within six and any accrued interest thereon all amounts becoming otherwise distributable (6) Months of the date of the Dilution Noticeincluding all distributions, the reallocation of the Profit Ratio shall be permanent and mandatory or otherwise to which the Defaulting Member would otherwise have been entitled under Section 4.1 hereof) or payable to such Defaulting Member by the Company. Any amount so retained and set-off by the Company shall not be permitted deemed to subsequently cure be a constructive cash distribution to the default Defaulting Member and restore a constructive repayment by such Member to the prior Profit Ratio without Company. Any repayment, whether constructive or actual, shall be applied first against any unpaid accrued interest on the express prior written consent of Defaulting Member’s Unpaid Required Contribution and the Performing remainder shall be applied against such Member, which may be granted or withheld in the discretion of the Performing Member’s Unpaid Required Contribution.

FAILURE TO CONTRIBUTE. 3.5.1 Default If a Member (a "Defaulting Member") 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 Additional Capital Contribution payment to the AIFM or the Management Company or return any distribution which such Limited Partner is required to return (in full within 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 required timeGeneral Partner specifying such failure, then such Limited Partner will be designated a Member who has paid “Defaulting Limited Partner” and the General Partner may, in its Profit Ratio of the required Additional Capital Contribution (a "Performing Member") may sole discretion, then take any one or all more of the following actions: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) Take The General Partner may sell the Defaulting Limited Partner’s Interest or any and all action 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 (including litigationi) on behalf 50% of the Company or in the Performing Member's own right to obtain payment value of the Defaulting Member's Additional 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, together with interest thereon at if any, second, to the Default Interest Rate from payment of any costs and expenses incurred by the date the Additional Capital Contribution was due, all at the cost and expense Fund or any Alternative Vehicle as a result of the Defaulting MemberLimited 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) Make an advance to The General Partner may segregate 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 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 Contribution and dilute the Profit Ratio Account of the Defaulting Member. If Limited Partner on the performing Member elects to dilute the Profit Ratio books of the Fund, and the Defaulting MemberLimited Partner thereafter will not be allocated any portion of Net Income or Current Income (which will instead be allocated to the non-defaulting Partners), then 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 Profit Ratio completion of the Members shall 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 adjusted so that they are in proportion paid pursuant to their total Additional 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 to the Company. For purposes of determining the voting tights of the Members, such adjustment shall be effective and its Capital Account as of the date of the Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as completion of the first day dissolution, liquidation and termination of the month immediately following Fund, less any costs and expenses (including the date costs of any borrowing) incurred by or on behalf of the Dilution NoticeFund in connection with such default. If a To the extent permitted by law, each Defaulting Member does not cure its default within six (6) Months Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of the date Fund or bring any action for dissolution of the Dilution NoticeFund, in each case, prior to the reallocation completion of the Profit Ratio shall be permanent 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 Member shall not be permitted Limited Partner the amount of any contribution or payment required hereunder that the Defaulting Limited Partner failed to subsequently cure contribute or pay, plus any costs and expenses (including the default and restore the prior Profit Ratio without the express prior written consent costs of any borrowing) incurred by or on behalf of the Performing Member, which may be granted or withheld Fund in the discretion of the Performing Memberconnection with such default.

FAILURE TO CONTRIBUTE. (a) If a any Series A Preferred Member (a "Defaulting Member") fails to make any Additional an additional Capital Contribution in accordance with Section 4.3(a) in the full within amount required by any Additional Funding Request (assuming there is no good faith dispute regarding whether the required time, then a Member who has paid its Profit Ratio conditions set forth in Section 3.2(a) of the required Preferred Purchase Agreement were satisfied or waived with respect to such Additional Capital Contribution (Funding Request) on the due date therefor, a "Performing Member") may take any or all “Preferred Payment Default” shall be deemed to have occurred in the amount of the following actionsDefault Amount. 31 (b) In the event a Preferred Payment Default has occurred: (ai) Take the Company shall have the right, but not the obligation, to sell additional Series A Preferred Units to a third party (a “Third-Party Purchaser”), at the Series A Preferred Issue Amount per Series A Preferred Unit and otherwise on the same terms as the Series A Preferred Units held by the defaulting Series A Preferred Member (such Member, a “Defaulting Preferred Member”), equal in number to the number of Series A Preferred Units that would have been issued to the Defaulting Preferred Member in exchange for receipt of the amount of such Capital Contribution not paid (the “Default Amount”); (ii) the Company shall have the right, but not the obligation, to cause the Remaining Commitment with respect to the Defaulting Preferred Member to be reduced to $0.00; and (iii) the Company may, at its option, pursue any other rights and all action remedies available to it at law or in equity against the Defaulting Preferred Member pursuant to the Preferred Purchase Agreement or this Agreement, including (including litigationx) on behalf the right to specific performance of such Defaulting Preferred Member’s obligation to make such additional Capital Contribution and (y) pursuing a claim for actual damages of the Company or in the Performing Member's own right to obtain payment of the Defaulting Member's Additional Capital Contribution, together with interest thereon at the Default Interest Rate Summit Member resulting from the date the Additional Capital Contribution was due, all at the cost and expense of the Defaulting Membersuch Preferred Payment Default. (b) 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 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 Contribution and dilute the Profit Ratio of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio of the Defaulting Member, then the Profit Ratio of the Members shall be adjusted so that they are in proportion to their total Additional Capital Contributions to the Company. For purposes of determining the voting tights of the Members, such adjustment shall be effective as of the date of the Dilution Notice; for purposes of allocating income and loss, such adjustment shall be effective as of the first day of the month immediately following the date of the Dilution Notice. If a Defaulting Member does not cure its default within six (6) Months of the date of the Dilution Notice, the reallocation of the Profit Ratio shall be permanent and 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 Performing Member, which may be granted or withheld in the discretion of the Performing Member.