Common use of Failure to Make a Capital Contribution Clause in Contracts

Failure to Make a Capital Contribution. If a Member fails to make any required Capital Contribution as set forth herein from and after the Effective Date (the “Delinquent Member”), then such Delinquent Member shall be subject to the provisions of Article 13. In addition, the Member that did not fail to make any required Capital Contribution as set forth herein (the “Non-Delinquent Member”) may exercise, on notice to the Delinquent Member, one of the following remedies: (a) the Non-Delinquent Member (the “Lending Member”) may advance the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: (i) The sum advanced shall constitute a loan from the Lending Member to the Delinquent Member (each, a “Member Loan”) and a Capital Contribution of that sum to the Company by the Delinquent Member and shall be treated as such by the Parties for U.S. federal, state and local income tax purposes; (ii) The unpaid principal balance of the Member Loan and all accrued unpaid interest shall be due and payable on the tenth day after written demand by the Lending Member to the Delinquent Member; (iii) The unpaid balance of the Member Loan shall bear interest at the Default Interest Rate, compounded monthly, from the day that the advance is deemed made until the date that the Member Loan, together with all accrued interest, is repaid to the Lending Member; (iv) All amounts distributable by the Company to the Delinquent Member shall (A) be paid to the Lending Member until the Member Loan and all accrued interest have been paid in full; (B) constitute a distribution to the Delinquent Member followed by a repayment of the Member Loan and accrued interest from the Delinquent Member to the Lending Member; and (C) be treated as such by the Parties for U.S. federal, state and local income tax purposes; (v) In addition to the other rights and remedies granted to it under this Agreement, the Lending Member has the right to take any action available at law or in equity, at the cost and expense of the Delinquent Member, to obtain payment from the Delinquent Member of the unpaid balance of the Member Loan and all accrued and unpaid interest; and (vi) The Delinquent Member grants to the Company, and to each Lending Member with respect to any Member Loans made to that Delinquent Member, as security, equally and ratably for the payment of all Capital Contributions that the Delinquent Member has agreed to make and the payment of all Member Loans and interest accrued made by Lending Members to that Delinquent Member, a security interest in its assets under the Uniform Commercial Code of the State of Nevada. On any default in the payment of a required Capital Contribution or in the payment of a Member Loan to a Lending Member or interest accrued, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Nevada with respect to the security interest granted. Each Delinquent Member hereby authorizes the Company and each Lending Member, as applicable, to prepare and file financing statements and other instruments that the Managing Member or the Lending Member, as applicable, may deem necessary to effectuate and carry out the preceding provisions of this Section 3.5(a). (b) the Non-Delinquent Member may contribute the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: Immediately following the contribution by the Non-Delinquent Member of a portion or all of the Delinquent Member’s Capital Contribution, the Profit Interest of the Non-Delinquent Member in the Company shall be increased and the Profit Interest of the Delinquent Member in the Company shall be decreased, with the result that such change in Profit Interest shall be permanent, and the Delinquent Member shall not have the option, other than pursuant to this Section 3.5(b), to restore its initial Profit Interest by making a curative Capital Contribution at a later time. The resulting Profit Interest of the Non-Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of the Non-Delinquent Member immediately prior to the corresponding Additional Capital Contribution and (B) add the Individual Base Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution and (C) add the Individual Adjusted Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution. The resulting Profit Interest of the Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of such Delinquent Member immediately prior to the corresponding Additional Capital Contribution, (B) subtract the Individual Base Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution and (C) subtract the Individual Adjusted Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution. The “Profit Interest” of each of MGM and IW as of the Effective Date is 50%. The Company shall not issue Units to any Member solely to reflect any increase in any Member’s Profit Interest, and a Member’s Interest shall not be deemed to increase or decrease solely as a result of an increase or decrease in the Member’s Profit Interest. For purposes of this Section 3.5(b), any failure by MGM or MGM MIRAGE to perform its obligations under the Construction Completion Guaranty shall be treated in the same manner as a failure of MGM to make a required Capital Contribution and to the extent that IW elects, in its sole and absolute discretion, to cure such failure to perform by advancing funds on MGM’s or MGM MIRAGE’s behalf, then such advances shall be treated the same as a contribution of MGM’s (as a Delinquent Member) Capital Contribution under this Section 3.5(b).

Failure to Make a Capital Contribution. If a Member fails to make any required Capital Contribution as set forth herein from and after Approved by the Effective Date (the “Delinquent Member”)Board of Directors pursuant to Section 9.3, then such Delinquent the Member shall be subject to the provisions of Article 13. In addition, the Member that did not fail to make any required Capital Contribution as set forth herein (the “Non-Delinquent Member”) Members may exercise, on notice to that Member (the “Delinquent Member”), one of the following remedies: (a) the Non-Delinquent Member Members may, in proportion to their Profit Interests or in such other percentages as they may agree (the “Lending Member”) may , whether one or more), to advance the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: (i) The sum advanced shall constitute constitutes a loan from the Lending Member to the Delinquent Member (each, a “Member Loan”) and a Capital Contribution of that sum to the Company by the Delinquent Member and shall be treated as such by the Parties all parties for U.S. federal, state and local income tax purposes; (ii) The unpaid principal balance of the Member Loan loan and all accrued unpaid interest shall be is due and payable on the tenth day after written demand by the Lending Member to the Delinquent Member; (iii) The unpaid balance of the Member Loan shall bear loan bears interest at the Default Interest Rate, compounded monthly, from the day that the advance is deemed made until the date that the Member Loanloan, together with all accrued interest, is repaid to the Lending Member; (iv) All amounts distributable by the Company to the Delinquent Member shall (A) be paid to the Lending Member until the Member Loan loan and all accrued interest have been paid in full; (B) constitute a distribution to the Delinquent Member followed by a repayment of the Member Loan loan and accrued interest from the Delinquent Member to the Lending Member; and (C) be treated as such by the Parties all parties for U.S. federal, state and local income tax purposes; (v) In addition to the other rights and remedies granted to it under this Agreement, the Lending Member has the right to take any action available at law or in equity, at the cost and expense of the Delinquent Member, to obtain payment from the Delinquent Member of the unpaid balance of the Member Loan loan and all accrued and unpaid interest; and (vi) The Delinquent Member grants to the Company, and to each Lending Member with respect to any Member Loans loans made to that Delinquent Member, as security, equally and ratably for the payment of all Capital Contributions that the Delinquent Member has agreed to make and the payment of all Member Loans loans and interest accrued made by Lending Members to that Delinquent Member, a security interest in its assets under the Uniform Commercial Code of the State of Nevada. On any default in the payment of a required Capital Contribution or in the payment of a Member Loan loan to a Lending Member or interest accrued, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Nevada with respect to the security interest granted. Each Delinquent Member hereby authorizes the Company and each Lending Member, as applicable, to prepare and file financing statements and other instruments that the Managing Member or the Lending Member, as applicable, may deem necessary to effectuate and carry out the preceding provisions of this Section 3.5(a)Section. (b) the Non-Delinquent Member Members may, in proportion to their Profit Interests or in such other percentages as they may agree (the “Non-Delinquent Member”, whether one or more), contribute the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: : (i) Immediately following the contribution by the Non-Delinquent Member of a portion or all of the Delinquent Member’s Capital Contribution, the Profit Interest of the Non-Delinquent Member in the Company shall be increased and the Profit Interest of the Delinquent Member in the Company shall be decreased, with the result that such change in Profit Interest shall be permanent, and the Delinquent Member shall not have the option, other than pursuant to this Section 3.5(b3.4(b), to restore its initial Profit Interest by making a curative Capital Contribution at a later time. The resulting “Profit Interest Interest” of the Non-Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of the Non-Delinquent Member immediately prior to the corresponding Additional Subsequent Capital Contribution and Contribution, (B) add the Individual Base Profit Interest Addition corresponding to such Member with respect to such Additional Subsequent Capital Contribution Contribution, and (C) unless the Delinquent Member was not, as a Defaulting Member, afforded the opportunity to vote for such Subsequent Capital Contribution, add the Individual Adjusted Profit Interest Addition corresponding to such Member with respect to such Additional Subsequent Capital Contribution. The resulting Profit Interest of the Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of such Delinquent Member immediately prior to the corresponding Additional Subsequent Capital Contribution, (B) subtract the Individual Base Profit Interest Subtraction corresponding to such Member with respect to such Additional Subsequent Capital Contribution and (C) subtract the Individual Adjusted Profit Interest Subtraction corresponding to such Member with respect to such Additional Subsequent Capital Contribution. The “initial Profit Interest” of each Interest of MGM and IW as of DW immediately following the Effective Closing Date is shall each be 50%. The Company shall not issue Units to any Member solely to reflect any increase in any Member’s Profit Interest, and a Member’s Interest shall not be deemed to increase or decrease solely as a result of an increase or decrease in the Member’s Profit Interest. For purposes of this Section 3.5(b), any failure by MGM or MGM MIRAGE to perform its obligations under the Construction Completion Guaranty shall be treated in the same manner as a failure of MGM to make a required Capital Contribution and to the extent that IW elects, in its sole and absolute discretion, to cure such failure to perform by advancing funds on MGM’s or MGM MIRAGE’s behalf, then such advances shall be treated the same as a contribution of MGM’s (as a Delinquent Member) Capital Contribution under this Section 3.5(b).

Failure to Make a Capital Contribution. If a Member fails to make any required Capital Contribution as set forth herein from and after Contribution, the Effective Date Company may exercise, on notice to that Member (the “Delinquent Member”), then such Delinquent Member shall be subject to the provisions of Article 13. In addition, the Member that did not fail to make any required Capital Contribution as set forth herein (the “Non-Delinquent Member”) may exercise, on notice to the Delinquent Member, one of the following remedies: (a) permit the Non-Delinquent Member Members, in proportion to their Percentage Interests or in such other percentages as they may agree (the “Lending Member”) may , whether one or more), to advance the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: (i) The sum advanced shall constitute constitutes a loan from the Lending Member to the Delinquent Member (each, a “Member Loan”) and a Capital Contribution of that sum to the Company by the Delinquent Member and shall be treated as such by the Parties all parties for U.S. federal, state and local income tax purposes; (ii) The unpaid principal balance of the Member Loan loan and all accrued unpaid interest shall be is due and payable on the tenth day after written demand by the Lending Member to the Delinquent Member; (iii) The unpaid balance of the Member Loan shall bear loan bears interest at the Default Interest Rate, compounded monthly, from the day that the advance is deemed made until the date that the Member Loanloan, together with all accrued interest, is repaid to the Lending Member; (iv) All amounts distributable by the Company to the Delinquent Member shall (A) be paid to the Lending Member until the Member Loan loan and all accrued interest have been paid in full; (B) constitute a distribution to the Delinquent Member followed by a repayment of the Member Loan loan and accrued interest from the Delinquent Member to the Lending Member; and (C) be treated as such by the Parties all parties for U.S. federal, state and local income tax purposes; (v) The payment of the loan and accrued interest is secured by a security interest in the Delinquent Member’s assets; (vi) In addition to the other rights and remedies granted to it under this Agreement, the Lending Member has the right to take any action available at law or in equity, at the cost and expense of the Delinquent Member, to obtain payment from the Delinquent Member of the unpaid balance of the Member Loan loan and all accrued and unpaid interest; and (vivii) The Delinquent Member grants to the Company, and to each Lending Member with respect to any Member Loans loans made to that Delinquent Member, as security, equally and ratably for the payment of all Capital Contributions that the Delinquent Member has agreed to make and the payment of all Member Loans loans and interest accrued made by Lending Members to that Delinquent Member, a security interest in its assets under the Uniform Commercial Code of the State of Nevada. On any default in the payment of a required Capital Contribution or in the payment of a Member Loan loan to a Lending Member or interest accrued, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Nevada with respect to the security interest granted. Each Delinquent Member hereby authorizes the Company and the each Lending Member, as applicable, to prepare and file financing statements and other instruments that the Managing Member Manager or the Lending Member, as applicable, may deem necessary to effectuate and carry out the preceding provisions of this Section 3.5(a)Section. (b) permit the Members, in proportion to their Percentage Interests or in such other percentages as they may agree (the “Non-Delinquent Member may Member”, whether one or more), to contribute the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: Immediately following the contribution by the Non-Delinquent Member of a portion or all of the Delinquent Member’s Capital Contribution, the Profit Interest of the Non-Delinquent Member in the Company shall be increased and the Profit Interest of the Delinquent Member in the Company shall be decreased, with the result that such change in Profit Interest shall be permanent, and the Delinquent Member shall not have the option, other than pursuant to this Section 3.5(b), to restore its initial Profit Interest by making a curative Capital Contribution at a later time. The resulting Profit Interest of the Non-Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of the Non-Delinquent Member immediately prior to the corresponding Additional Capital Contribution and (B) add the Individual Base Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution and (C) add the Individual Adjusted Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution. The resulting Profit Interest of the Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of such Delinquent Member immediately prior to the corresponding Additional Capital Contribution, (B) subtract the Individual Base Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution and (C) subtract the Individual Adjusted Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution. The “Profit Interest” of each of MGM and IW as of the Effective Date is 50%. The Company shall not issue Units to any Member solely to reflect any increase in any Member’s Profit Interest, and a Member’s Interest shall not be deemed to increase or decrease solely as a result of an increase or decrease in the Member’s Profit Interest. For purposes of this Section 3.5(b), any failure by MGM or MGM MIRAGE to perform its obligations under the Construction Completion Guaranty shall be treated in the same manner as a failure of MGM to make a required Capital Contribution and to the extent that IW elects, in its sole and absolute discretion, to cure such failure to perform by advancing funds on MGM’s or MGM MIRAGE’s behalf, then such advances shall be treated the same as a contribution of MGM’s (as a Delinquent Member) Capital Contribution under this Section 3.5(b).:

Failure to Make a Capital Contribution. If a Member fails to make any required Capital Contribution as set forth herein from and after the Effective Date (the “Delinquent Member”), then such Delinquent Member shall be subject to the provisions of Article 13. In addition, the Member that did not fail to make any required Capital Contribution as set forth herein (the “Non-Delinquent Member”) may exercise, on notice to the Delinquent Member, one of the following remedies: (a) the Non-Delinquent Member (the “Lending Member”) may advance the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: (i) The sum advanced shall constitute a loan from the Lending Member to the Delinquent Member (each, a “Member Loan”) and a Capital Contribution of that sum to the Company by the Delinquent Member and shall be treated as such by the Parties for U.S. federal, state and local income tax purposes; (ii) The unpaid principal balance of the Member Loan and all accrued unpaid interest shall be due and payable on the tenth day after written demand by the Lending Member to the Delinquent Member; (iii) The unpaid balance of the Member Loan shall bear interest at the Default Interest Rate, compounded monthly, from the day that the advance is deemed made until the date that the Member Loan, together with all accrued interest, is repaid to the Lending Member; (iv) All amounts distributable by the Company to the Delinquent Member shall (A) be paid to the Lending Member until the Member Loan and all accrued interest have been paid in full; (B) constitute a distribution to the Delinquent Member followed by a repayment of the Member Loan and accrued interest from the Delinquent Member to the Lending Member; and (C) be treated as such by the Parties for U.S. federal, state and local income tax purposes; (v) In addition to the other rights and remedies granted to it under this Agreement, the Lending Member has the right to take any action available at law or in equity, at the cost and expense of the Delinquent Member, to obtain payment from the Delinquent Member of the unpaid balance of the Member Loan and all accrued and unpaid interest; and (vi) The Delinquent Member grants to the Company, and to each Lending Member with respect to any Member Loans made to that Delinquent Member, as security, equally and ratably for the payment of all Capital Contributions that the Delinquent Member has agreed to make and the payment of all Member Loans and interest accrued made by Lending Members to that Delinquent Member, a security interest in its assets under the Uniform Commercial Code of the State of Nevada. On any default in the payment of a required Capital Contribution or in the payment of a Member Loan to a Lending Member or interest accrued, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Nevada with respect to the security interest granted. Each Delinquent Member hereby authorizes the Company and each Lending Member, as applicable, to prepare and file financing statements and other instruments that the Managing Member or the Lending Member, as applicable, may deem necessary to effectuate and carry out the preceding provisions of this Section 3.5(a). (b) the Non-Delinquent Member may contribute the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results: Immediately following the contribution by the Non-Delinquent Member of a portion or all of the Delinquent Member’s Capital Contribution, the Profit Interest of the Non-Delinquent Member in the Company shall be increased and the Profit Interest of the Delinquent Member in the Company shall be decreased, with the result that such change in Profit Interest shall be permanent, and the Delinquent Member shall not have the option, other than pursuant to this Section 3.5(b), to restore its initial Profit Interest by making a curative Capital Contribution at a later time. The resulting Profit Interest of the Non-Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of the Non-Delinquent Member immediately prior to the corresponding Additional Capital Contribution and (B) add the Individual Base Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution and (C) add the Individual Adjusted Profit Interest Addition corresponding to such Member with respect to such Additional Capital Contribution. The resulting Profit Interest of the Delinquent Member shall be the number of percentage points (rounded to the nearest one hundredth of a percentage point) determined in accordance with the following formula: (A) determine the Profit Interest of such Delinquent Member immediately prior to the corresponding Additional Capital Contribution, (B) subtract the Individual Base Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution and (C) subtract the Individual Adjusted Profit Interest Subtraction corresponding to such Member with respect to such Additional Capital Contribution. The “Profit Interest” of each of MGM and IW as of the Effective Date is 50%. The Company shall not issue Units to any Member solely to reflect any increase in any Member’s Profit Interest, and a Member’s Interest shall not be deemed to increase or decrease solely as a result of an increase or decrease in the Member’s Profit Interest. For purposes of this Section 3.5(b), any failure by MGM or MGM MIRAGE to perform its obligations under the Construction Completion Guaranty shall be treated in the same manner as a failure of MGM to make a required Capital Contribution and to the extent that IW elects, in its sole and absolute discretion, to cure such failure to perform by advancing funds on MGM’s or MGM MIRAGE’s behalf, then such advances shall be treated the same as a contribution of MGM’s (as a Delinquent Member) Capital Contribution under this Section 3.5(b).