Common use of Failure to Fund Approved Capital Contribution Commitment or Loan Commitment Clause in Contracts

Failure to Fund Approved Capital Contribution Commitment or Loan Commitment. If a Member fails to fund a Capital Contribution Commitment or a Loan Commitment that is required to be funded by such Member pursuant to this Agreement, then the following provisions of this Section 3.2.3 shall apply: 3.2.3.1 with regard to the non-defaulting Member’s Capital Contribution Commitment or Loan Commitment, no later than the date that is ten (10) calendar days following the date on which such Capital Contribution Commitment or Loan Commitment was required to be funded (the “Required Funding Date”), the non-defaulting Member shall have the option, exercisable in its sole discretion, to take any of the following actions: 3.2.3.1.1 in the case of a Loan Commitment, requiring the Company to return to such non-defaulting Member the amount of such Loan Commitment that such non-defaulting Member so funded to the Company pursuant to the terms of this Agreement, it being understood that the amount so returned shall include both the principal amount of the loan and the interest accrued under the terms of applicable Intercompany Promissory Note through the date of payment, and such Intercompany Promissory Note shall be cancelled upon the receipt of such amount by such non-defaulting Member; 3.2.3.1.2 in the case of a Loan Commitment, leaving in the Company the entire amount of such Loan Commitment already funded to the Company pursuant to the terms of this Agreement (in which case each of the Intercompany Promissory Notes pertaining to such Loan Commitment shall remain in full force and effect in accordance with their terms); 3.2.3.1.3 in the case of a Capital Contribution Commitment, requiring the Company to return to such non-defaulting Member the entire amount of such Capital Contribution Commitment that it so funded to the Company; and 3.2.3.1.4 in the case of a Capital Contribution Commitment, leaving in the Company the entire amount of any portion of such Capital Contribution Commitment already funded to the Company by such non-defaulting Member, for credit to such non-defaulting Member’s Capital Account, and the Percentage Interests of each Member shall be adjusted in the manner described in Section 3.2.6 based on the Fair Value of the Company as of the Required Funding Date; and 3.2.3.2 with regard to the defaulting Member’s Capital Contribution Commitment or Loan Commitment, at any time following the date that is ten (10) calendar days following the Required Funding Date, the non-defaulting Member shall have the option, exercisable in its sole discretion, to take one or none of the following actions (it being understood that the non-defaulting Member shall not be entitled to take any of the following actions if such non-defaulting Member took any of the actions described in Section 3.2.3.1.1 or Section 3.2.3.1.3): 3.2.3.2.1 with the consent of the defaulting Member, making a loan (a “Member Loan”) to the defaulting Member (in an amount equal to the defaulting Member’s Capital Contribution Commitment or Loan Commitment), which such loan shall bear an interest rate of fifteen percent (15%), mature on the two-year anniversary of the Required Funding Date and otherwise contain terms that are substantially similar to the terms set forth in the Intercompany Promissory Note in order to enable the defaulting Member to make such required Capital Contribution Commitment or Loan Commitment to the Company, and if the defaulting Member does not repay such loan in accordance with its terms, at the lending Member’s option, (a) the lending Member shall be entitled to terminate this Agreement in accordance with Section 21.2.4, or (b) such loan shall convert into a Capital Contribution by the lending Member to the Company, creditable to such lending Member’s Capital Account, and the Percentage Interests of each Member shall be adjusted in the manner described in Section 3.2.6 based on the Fair Value of the Company as of the maturity date of such Member Loan; and 3.2.3.2.2 making directly to the Company, for credit to such non-defaulting Member’s Capital Account, a Capital Contribution in the amount of such defaulting Member’s required Capital Contribution Commitment or Loan Commitment, and the Percentage Interests of each Member shall be adjusted in the manner described in Section 3.2.6 based on the Fair Value of the Company as of the time at which such Capital Contribution is made (such contributing Member referred to as the “Contributing Member” and each such contribution, a “Substitute Contribution”); provided, however, if the non-Contributing Member (the “Non-Contributing Member”) fails to, within two (2) years following the Required Funding Date pertaining to such Capital Contribution Commitment or Loan Commitment, exercise its option to purchase, pursuant to Section 3.2.5, that portion of the Membership Interest of the Contributing Member pertaining to such Contributing Member’s Substitute Contribution, then the Contributing Member shall be entitled to terminate this Agreement in accordance with Section 21.2.4. For the avoidance of doubt, a defaulting Member’s failure to fund a Capital Contribution Commitment or a Loan Commitment that is required pursuant to this Agreement shall not, in and of itself, constitute a Material Breach, and the non-defaulting Member shall not be entitled to terminate this Agreement in accordance with Section 21.2.4 with respect to such failure to fund such particular Capital Contribution Commitment or Loan Commitment; provided, that the foregoing shall not prohibit the non-defaulting Member from exercising its rights under, as applicable, (i) clause (a) or clause (b) of Section 3.2.3.2.1 above, or (ii) the proviso in Section 3.2.3.2.2 above.