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 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 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 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.