Capital Contributions Capital Accounts The capital contribution of the Sole Member is set forth on Annex A attached hereto. Except as required by applicable law, the Sole Member shall not at any time be required to make additional contributions of capital to the Company. The capital accounts of the members shall be adjusted for distributions and allocations made in accordance with Section 8.
Capital Contributions and Capital Accounts (a) The capital contributions of each party shall be all amounts paid by it pursuant to the Agreement. With respect to each oil and gas property and the related assets subject to the Agreement, each party shall be treated as having contributed to the tax partnership an amount of cash equal to such party's share of any Lease acquisition or other property costs and the tax partnership shall be treated as having purchased such property from the party to whom such amounts are paid.
(b) An individual capital account shall be maintained for each party in accordance with the following:
(i) The capital account of each party shall, except as otherwise provided herein, be (A) credited by the amount of cash and fair market value of any property contributed to the tax partnership (net of any liabilities assumed by the parties hereto or to which such property is subject at the time of contribution) as provided in subparagraph (a) of this paragraph 4, and (B) credited with the amount of any item of taxable income or gain and the amount of any item of income or gain exempt from tax allocated to such party.
(ii) The capital account of each party shall be debited by (A) the amount of any item of tax deduction or loss allocated to such party, (B) such party's allocable share of expenditures not deductible in computing taxable income and not properly chargeable as capital expenditures, including any non-deductible book amortizations of capitalized costs, and (C) the amount of cash or the fair market value of any property (net of any liabilities assumed by such party or to which such property is subject at the time of distribution) distributed to such party (after making the adjustment provided in subparagraph (b)(iii) in this paragraph 4).
(iii) Immediately prior to any distribution of property that is not pursuant to a liquidation of the tax partnership, the parties' capital accounts shall be adjusted by assuming that the distributed assets were sold for cash at their respective fair market values as of the date of distribution and crediting or debiting each party's capital account with its respective share of the hypothetical gains or losses resulting from such assumed sales determined in the same manner as gains or losses provided for under paragraphs 4(b)(iv) and 6 for actual sales of such properties.
(iv) The allocation of basis prescribed by Section 613A(c)(7)(D) of the Code and provided for in paragraph 6 hereinbelow and each party's depletion deductions shall not reduce such party's capital account, but such party's capital account shall be decreased by an amount equal to the product of (A) the depletion deductions that would otherwise be allocable to the tax partnership in the absence of Section 613A(c)(7)(D) of the Code (computed without regard to any limitations which theoretically could apply to any party) and (B) such party's percentage share of the adjusted basis of the property with respect to which such depletion is claimed (herein called "Simulated Depletion"). The tax partnership's basis in any oil or gas property, as adjusted from time to time for Simulated Depletion, is herein called "Simulated Basis." No party's capital account shall be decreased, however, by Simulated Depletion deductions attributable to any depletable property to the extent such deductions exceed such party's remaining Simulated Basis in such property. Upon the sale or other disposition of an interest in a depletable property, each party's capital account shall be credited with the gain ("Simulated Gain") or debited with the loss ("Simulated Loss") determined by subtracting from its allocable share of the amount realized on such sale or disposition its Simulated Basis, as adjusted by Simulated Depletion.
(v) Any adjustments of basis of property provided for under Sections 734 and 743 of the Code and comparable provisions of state law (resulting from an election under Section 754 of the Code or comparable provisions of state law) shall not affect the capital accounts of the parties, and the parties' capital accounts shall be debited or credited as if no such election had been made unless otherwise required by applicable Treasury Regulations.
(vi) Capital accounts shall be adjusted, in a manner consistent with subparagraph (b) of this paragraph 4, to reflect any adjustments in items of income, gain, loss or deduction that result from amended returns filed by the tax partnership or pursuant to an agreement with the Internal Revenue Service or a final court decision.
(vii) In the case of property contributed to the tax partnership by a party, the parties' capital accounts shall be debited or credited for items of depreciation, Simulated Depletion, amortization and gain or loss with respect to such property computed in the same manner as such items would be computed if the adjusted tax basis of such property were equal to its fair market value on the date of its contribution to the tax partnership, in lieu of the capital account adjustments provided above for such items, all in accordance with Section 704(c) of the Code and Treasury Regulation 1.704-1(b)(2)(iv)(g).
Member's Capital Accounts A Capital Account for the Member shall be maintained by the Company. The Member's Capital Account shall reflect the Member’s capital contributions and increases for any net income or gain of the Company. The Member’s Capital Account shall also reflect decreases for distributions made to the Member and the Member’s share of any losses and deductions of the Company.
Deficit Capital Accounts No Member will be required to pay to the Company, to any other Member or to any third party any deficit balance that may exist from time to time in the Member’s Capital Account.
Excess Cash Flow In the event that there shall be Excess Cash Flow in excess of $2,500,000 for any Fiscal Year, the Borrower shall, not later than the tenth Business Day following the date that is ninety days after the end of such Fiscal Year, prepay the Loans in an aggregate amount equal to 50% (provided that (i) such prepayment percentage shall be 25% if, as of the last day of the most recently ended Fiscal Year, the Senior Secured Net Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Senior Secured Net Leverage Ratio as of the last day of such Fiscal Year) shall be 1.80:1.00 or less and (ii) no such prepayment shall be required by this clause (e) if the foregoing Senior Secured Net Leverage Ratio as of the last day of such Fiscal Year shall be 1.30:1.00 or less) of the entire Excess Cash Flow for such Fiscal Year minus 100% of voluntary repayments of the Loans made during such Fiscal Year with Internally Generated Cash; provided, that, if at the time that any such prepayment would be required, the Borrower is required to repay or repurchase or to offer to repurchase or repay Senior Secured Debt permitted pursuant to Section 6.1 pursuant to the terms of the documentation governing such Indebtedness with all or a portion of such Excess Cash Flow (such Senior Secured Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable ECF Indebtedness”), then the Borrower may apply such Excess Cash Flow on a pro rata basis to the prepayment of the Loans and to the repayment or re-purchase of Other Applicable ECF Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.10(e) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable ECF Indebtedness at such time, with it being agreed that the portion of Excess Cash Flow allocated to the Other Applicable ECF Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Applicable ECF Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof); provided further, that to the extent the holders of Other Applicable ECF Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof.
Member Capital Contributions (Check One)
PIPE Investment (a) Following the Original Agreement Date and until the date of the mailing of the Proxy Statement to the stockholders of Acquiror may enter into subscription agreements (each, a “Subscription Agreement”) with investors (a “PIPE Investor”) relating to an investment in convertible preferred stock of Acquiror (“PIPE Securities”) pursuant to a private placement to be consummated immediately prior to the consummation of the Business Combination (the “PIPE”), in either case, on terms mutually agreeable to Acquiror and the Company acting reasonably and in good faith (a “PIPE Investment”), provided that, unless otherwise agreed by Acquiror and the Company, the aggregate gross proceeds under the Subscription Agreements shall not exceed $100,000,000 (the “PIPE Investment Amount”), provided further that, such PIPE Investment Amount shall be increased to account for any fees paid by the Company in connection with the negotiation, execution and/or consummation of the PIPE Investment Amount. In connection with Acquiror seeking a PIPE Investment, Acquiror and the Company shall, and shall cause their respective Representatives to, cooperate with each other and their respective Representatives in connection with such PIPE Investment and use their respective commercially reasonable efforts to cause such PIPE Investment to occur (including having the Company’s senior management participate in any investor meetings and roadshows as reasonably requested by Acquiror). In connection with a PIPE Investment, to the extent necessary to address the treatment of the PIPE Securities underlying such PIPE Investment hereunder, Acquiror and the Company shall negotiate in good faith to amend or otherwise modify this Agreement to reflect such PIPE Securities.
(b) Acquiror shall not reduce the PIPE Investment Amount or the subscription amount under any Subscription Agreement or reduce or impair the rights of Acquiror under any Subscription Agreement, permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any of the Subscription Agreements, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision); provided, that, in the case of any such assignment or transfer, the initial party to such Subscription Agreement remains bound by its obligations with respect thereto in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of the PIPE Securities contemplated thereby, unless otherwise approved in writing by the other Party (which approval shall not be unreasonably withheld, conditioned or delayed), and except for any of the foregoing actions that would not increase conditionality or impose any new obligation on Acquiror.
(c) Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by any Subscription Agreement to which it is a party on the terms and conditions described therein, including maintaining in effect such Subscription Agreement and to use its reasonable best efforts to: (i) satisfy in all material respects on a timely basis all conditions and covenants applicable to Acquiror in such Subscription Agreement and otherwise comply with its obligations thereunder, (ii) confer with the Company regarding timing for delivery of any closing notice pursuant to such Subscription Agreement, and (iii) enforce its rights under such Subscription Agreement in the event that all conditions in such Subscription Agreement (other than conditions that Acquiror, the Company or any of their respective Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause the applicable PIPE Investor to pay to (or as directed by) Acquiror the consideration set forth in such Subscription Agreement and consummate the transactions contemplated by such Subscription Agreement at or prior to Closing, in accordance with its terms.
(d) Without limiting the generality of the foregoing, Acquiror shall give the Company prompt written notice: (i) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to any Subscription Agreement known to Acquiror; (ii) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement; (iii) of any amendment, waiver or modification to any Subscription Agreement entered into by Acquiror that such Party was permitted to make without the prior written consent of the Company in accordance with this Section 8.04(d), it being understood that such amendment, waiver or modification is not conditioned on delivery of such notice and (iv) if Acquiror does not expect to receive all or any portion of financing proceeds on the terms, in the manner or from the applicable PIPE Investors as contemplated by the Subscription Agreements.
Negative Capital Accounts No Member shall be required to pay to any other Member or the Company any deficit or negative balance which may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).
Member and Capital Contribution The name and the business address of the Member and the amount of cash or other property contributed or to be contributed by the Member to the capital of the Company are set forth on Schedule A attached hereto and shall be listed on the books and records of the Company. The managers of the Company shall be required to update the books and records, and the aforementioned Schedule, from time to time as necessary to accurately reflect the information therein. The Member shall not be required to make any additional contributions of capital to the Company, although the Member may from time to time agree to make additional capital contributions to the Company.
