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

Failure to Make a Required Additional Capital Contribution. (a) If a Class A Member (the “Defaulting Member”) does not make all or any portion of an additional Capital Contribution that such Defaulting Member is required to make pursuant to a Capital Call in accordance with Section 3.2(a) by the date set forth in such Capital Call (the portion of such Capital Contribution not made, the “Default Amount”), then the Company shall forthwith notify the other Class A Members (the “Non-Defaulting Members”) of the Default Amount, and the Non-Defaulting Members may take the following actions: within twenty (20) days after a Defaulting Member’s default, the Non-Defaulting Members may advance Capital Contributions, in each Non-Defaulting Member’s sole discretion, in an aggregate amount not in excess of the Default Amount in such proportions as they may agree, or if they cannot agree, pro rata in accordance with their respective Sharing Ratios in effect immediately prior to such advancement of Capital Contributions (with any Non-Defaulting Member making such an advance referred to as a “Participating Member”). (b) Advances from Participating Members under Section 3.3(a) shall be treated as Capital Contributions by the Participating Members, and the Sharing Ratios and Capital Account balances of the Class A Members shall be adjusted in accordance with Section 3.2(b) to accurately reflect all such advances. The number of Class A Units held by each Member following any advance made by one or more Participating Members pursuant to Section 3.3(a) shall be determined in accordance with Section 3.2(b). (c) In the event the Non-Defaulting Members elect not to make up all of the Default Amount, the Company shall have the right to take any action available at law or in equity against the Defaulting Member for failure to make the required Capital Contribution, including suing for damages, specific performance or any combination of available remedies. All remedies available to the Company shall be cumulative, and the election of any one shall not preclude the availability of another, to the extent permitted under applicable Law. In any action brought by the Company to enforce its rights under this Section 3.3, the prevailing party in such action shall be entitled to recover all costs and fees (including reasonable attorneys’ fees) incurred by it in connection with such action, including any appeals.

Failure to Make a Required Additional Capital Contribution. (a) If a Class A Member (the “"Defaulting Member”") does not make contribute by the time required, all or any portion of an additional Capital Contribution that such Defaulting Member is required to make pursuant to a Capital Call in accordance with under Section 3.2(a) by the date set forth in such Capital Call (the portion of such Capital Contribution not made, the “"Default Amount”"), then the Company shall forthwith notify the other Class A Members (the “"Non-Defaulting Members”) of the Default Amount"), and the Non-Defaulting Members may take any of the following actions: within twenty : (20a) Within 20 days after a the Defaulting Member’s Members' default, the Non-Defaulting Members may advance Capital Contributionsadvance, in each Non-Defaulting Member’s 's sole discretion, in an aggregate amount not in excess of the Default Amount in such proportions as they may agree, or if they cannot agree, pro rata in accordance with their respective Sharing Ratios in effect immediately prior to such advancement of Capital Contributions (with any Non-Defaulting Member making such an advance referred to as a “"Participating Member”"). (b) Advances from Notwithstanding Section 3.3(a), if one or more Participating Members advance the entire Default Amount, the provisions of this Section 3.3(b) shall be the exclusive remedy for the failure by the Defaulting Member to make such Capital Call. The Members holding a majority of the Voting Interests of the Participating Members shall make an election within 10 days after the last Participating Member makes an advance with respect to the Default Amount as to whether all such advances are designated as being made under the provisions of Section 3.3(a3.3(b)(i) or are designated as being made under the provisions of Section 3.3(b)(ii), and shall send a written notice to the Defaulting Member of such election within office (5) days if the end of such 10-day period. (i) Advances designated under this Section 3.3(b)(i) shall constitute a loan from the Non-Defaulting Members to the Defaulting Member and a Capital Contribution of that sum to the Company by the Defaulting Member pursuant to the applicable provisions of this Agreement, with the following results: (A) the principal balance of the loan and all accrued unpaid interest thereon shall be due and payable in whole on the tenth day after written demand therefor by Participating Members holding a majority of the Voting Interests of the Participating Members to the Defaulting Member; (B) at any time prior to the payment of the loan and all accrued interest thereon, the Participating Members holding a majority of the Voting Interests of all Participating Members may elect to deem the unpaid amount of the loan and the interest thereon a Capital Contribution by the Participating Members, in which case the provisions of Section 3.3(b)(ii) shall thereafter apply to such Capital Contribution; (C) the amount loaned shall bear interest at the Default Interest Rate from the date that the Participating Members advance the entire Default Amount until the date that the loan, together with all interest accrued on it, is repaid to the Non-Defaulting Members (or until the date such loan is converted into a Capital Contribution pursuant to clause (B) above); (D) all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or after dissolution of the Company and whether before or after demand for payment is made pursuant to clause (A) above) instead shall be paid to the Participating Members pro rata until the loan and all interest accrued thereon have been paid in full to the Participating Members (with payments being applied first to accrued and unpaid interest and then to principal); (E) the Defaulting Members shall be deemed to have granted a security interest to the Participating Members in and to all Units and any other interests held by the Defaulting Members in the Company, and the Participating Members shall have the right to exercise all rights of a secured party under the Uniform Commercial Code of the State of Colorado, as well as any other rights and remedies granted to them pursuant to this Agreement or available to them at law or in equity as the Participating Members holding a majority of the Voting Interests of all Participating Members may deem appropriate to obtain payment by the Defaulting Members of the loan, including all accrued and unpaid interest thereon, all at the cost and expense of the Defaulting Members (which shall include all reasonable costs and attorney fees incurred by the Participating Members in collecting any amounts due from any Defaulting Member); (F) the Defaulting Members shall take any and all steps and perform any and all acts reasonably requested by the Participating Members to allow the Participating Members to perfect the security interest granted and described in the foregoing paragraph, including, without limitation, signing and delivering to the Participating Members any documents necessary to evidence or perfect such security interest, including allowing a transcript of this Section 3.3 to be prepared and filed with any Person as evidence of the security interest so granted, and allowing the Participating Members to prepare and file such financing statements with the State of Colorado (or elsewhere) as may be necessary or desirable to place such security interest of record; in addition, the Defaulting Members shall deliver to the Participating Members any certificates evidencing the Units; and (G) during the period any interest or principal with respect to any loan made to a Defaulting Member pursuant to this Section 3.3(b)(i) remains outstanding, all rights of such Defaulting Member to vote, veto or consent to any matter with respect to the Company, including any matter to be acted upon pursuant to this Agreement or the Act, shall be suspended, and neither the Sharing Ratio nor Voting Interest of such Defaulting Member shall be deemed outstanding for purposes of determining whether a quorum exists at any meeting of the Members or whether any specified percentage or majority of votes required to adopt, consent to or approve any matter has been obtained; provided, however, such suspension shall be effective only to the extent permitted by applicable Law. (ii) Advances designated under this Section 3.3(b)(ii) shall be treated as a Capital Contributions Contribution by the Participating Members, Members and shall be credited to the Sharing Ratios and Capital Account balances Accounts of the Class A Participating Members making the advances. The Sharing Ratio of the Defaulting Member shall be adjusted in accordance with Section 3.2(b(but not below zero) to accurately reflect all such advances. the following ratio (expressed as a percentage): (The number of Class A Units held by each Member following any advance made by one or more Participating Members pursuant to Section 3.3(a) shall be determined in accordance with Section 3.2(b). (c) In the event the Non-Defaulting Members elect not to make up all Total Capital Contributions of the Default Amount, the Company shall have the right to take any action available at law or in equity against the Defaulting Member for failure to make the required Member) ---------------------------------------------------------- (The Total Capital Contribution, including suing for damages, specific performance or any combination Contributions of available remedies. All remedies available to the Company shall be cumulative, and the election Members) For purposes of any one shall not preclude the availability of another, to the extent permitted under applicable Law. In any action brought by the Company to enforce its rights under this Section 3.3, the prevailing party in such action shall be entitled to recover all costs and fees (including reasonable attorneys’ fees) incurred by it in connection with such action, including any appeals.3.3(b)(ii):