Required Capital Contributions. (a) If the Outside Financing cannot be obtained on terms and conditions acceptable to the Manager, but the Company is required to advance funds to FCC pursuant to the terms of the Commitment, then on or before the date such funds are required to be advanced, Berkadia-Management shall fund to the Company an amount of Capital Contributions that, when combined with the Outside Financing actually obtained, is sufficient to satisfy the Company's obligations under the Commitment. (b) If any payment, including any amount of principal, interest or similar item, or any amount attributable to indemnification obligations of the Company under the Outside Financing Documents, is due to be paid to the lenders who have provided the Outside Financing and the Company does not have sufficient funds to make such payment (apart from Finova Fees, Stock Proceeds or the FNV Stock), then on or before the date such funds are required to be paid, Berkadia- Management shall fund to the Company an amount of Capital Contributions that is sufficient to pay the amounts required to be paid (without drawing upon such Finova Fees, Stock Proceeds or the FNV Stock, which assets shall not be applied by the Company to satisfy such Company obligations, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof). Consistent with the preceding sentence, and pursuant to Section 18-303(b) of the Act, Berkadia-Management hereby agrees to be liable for all of the Company's obligations under the Outside Financing, and no other Member shall bear any responsibility or liability for any portion of such Company obligations. (c) If the Company incurs costs or expenses, other than those set forth in Section 2.3(a) or (b) above, and does not have sufficient funds to pay such expenses (apart from Finova Fees, Stock Proceeds or the FNV Stock), upon demand by the Company or by either Member, the Members shall promptly make Capital Contributions sufficient to pay such costs and expenses (without drawing upon such Finova Fees, Stock Proceeds or the FNV Stock, which assets shall not be applied by the Company to satisfy such Company expenses, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof) in accordance with the following: (i) with respect to costs and expenses incurred in the operation of the Company's Business from the Formation Date through the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Fee Percentages; provided, however, that with respect to any -------- ------- origination, commitment or similar up-front fees payable in connection with the Outside Financing, the Members shall make such Capital Contributions in accordance with their Debt Percentages; (ii) with respect to costs and expenses incurred in the operation of the Company's Business following the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Debt Percentages; provided, however, that -------- ------- the Members shall make such Capital Contributions in accordance with their Stock Percentages with respect to costs and expenses attributable to the ownership of the FNV Stock; (iii) the Original Berkshire Member agrees to contribute (or cause to be contributed) to B-Sub, and the Original Leucadia Member agrees to contribute (or cause to be contributed) to L-Sub, an amount sufficient in each case for such Member to fund its Required Capital Contributions as and when required under this Section 2.3(c); and (iv) notwithstanding (i) - (iii) above, Section 12.2 shall control Capital Contributions required to fund costs and expenses that constitute Covered Losses. (d) If B-Sub or L-Sub (the "defaulting Member") fails to fund its Required Capital Contributions as and when required, whether pursuant to this Section 2.3, Section 12.2, or otherwise, the non-defaulting Member (other than Berkadia-Management) shall have a direct claim against the defaulting Member for breach of contract hereunder, and the non-defaulting Member and the Company (at the sole direction of the non-defaulting Member) shall have all remedies available to either of them in law or equity with respect to such failure by the defaulting Member. Without limiting the foregoing, (i) interest shall accrue on a defaulting Member's unfunded Capital Contributions from the date required to be made at a per annum rate equal to the "prime rate" (as specified in the Wall Street Journal or similar national publication) plus two percentage points ("prime plus two"), compounded annually, (ii) the non-defaulting Member shall be entitled to contribute to the Company the amount of such unfunded Capital Contributions, and (iii) to the extent the non-defaulting Member has funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member under this Agreement, whether pursuant to Section 4.1, upon liquidation of the Company pursuant to Section 10.2, or otherwise, shall be distributed by the Company to the non-defaulting Member, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the non-defaulting Member has received from the Company on account of such distributions a return of the amount, if any, funded in place of the defaulting Member, plus interest thereon from the date funded at prime plus two, compounded annually. To the extent the non-defaulting Member has not funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member shall be retained by the Company, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the Company has retained an amount of such distributions equal to the amount not funded by the defaulting Member (or by the non-defaulting Member pursuant to the immediately preceding sentence), plus interest thereon from the date required to be made at prime plus two, compounded annually. A defaulting Member shall remain in default hereunder until it has contributed, or is deemed to have contributed, to the Company, all amounts required to be contributed under this Section 2.3(d), including interest. Beginning on the date that is 10 days after the receipt of written notice from the Company or the non-defaulting Member that the recipient Member is in default hereunder, the defaulting Member shall not have any voting, consent or appointment rights as a Member, or any other rights to direct the Company in any manner, during the continuation of such default.
Appears in 1 contract
Required Capital Contributions. (a) If the Outside Financing cannot be obtained on terms and conditions acceptable Any funds which are required from time to the Manager, but the Company is required time to advance funds to FCC pursuant to the terms meet obligations of the Commitment, then on or before Partnership shall be contributed by the Partners in the proportions of their Capital Percentages. Such contributions shall be made within thirty (30) days after the date that the Managing Partner notifies all of the Partners of such funds are required to be advanced, Berkadia-Management shall fund to requirement (the Company an amount of Capital Contributions that, when combined with the Outside Financing actually obtained, is sufficient to satisfy the Company's obligations under the Commitment“Notice Date”).
(b) If If, at any paymenttime, including any amount Partner should fail to contribute any sum required in accordance with the provisions of principalthis Section 3.1 (a “Defaulting Partner”), interest or similar itemand such failure shall continue for thirty (30) days following the Notice Date, or any amount attributable to indemnification obligations then such of the Company under other Partners (including the Outside Financing DocumentsManaging Partner) as elect to do so may advance the sum which such Defaulting Partner shall have failed to contribute (each, is due an “Advancing Partner”), and in such proportions as may be agreed upon among them, and if the Advancing Partners are unable to agree, the sum to be paid advanced shall be advanced in accordance with the ratios that the Capital Percentages of the Advancing Partners bear to one another. Upon any such advance or advances, the Defaulting Partner shall be obligated to repay said sum to the lenders who have provided Advancing Partners, and such sum shall bear interest at the Outside Financing and the Company does not have sufficient funds Applicable Rate until such sum is paid. Amounts that would otherwise be distributed to make such payment (apart from Finova Fees, Stock Proceeds or the FNV Stock), then on or before the date such funds are required to a Defaulting Partner shall be paid, Berkadia- Management shall fund distributed to the Company an Advancing Partners to the extent of the amount of Capital Contributions that owing to the Advancing Partner. If there is sufficient to pay more than one Advancing Partner, the amounts required that would otherwise be distributed to the Defaulting Partner shall be paid (without drawing upon distributed among the Advancing Partners in proportion to the amounts owed to each such Finova Fees, Stock Proceeds or the FNV Stock, which assets shall not be applied by the Company to satisfy such Company obligations, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof). Consistent with the preceding sentence, and pursuant to Section 18-303(b) of the Act, Berkadia-Management hereby agrees to be liable for all of the Company's obligations under the Outside Financing, and no other Member shall bear any responsibility or liability for any portion of such Company obligationsAdvancing Partners.
(c) If The Defaulting Partner shall not be personally liable for the Company incurs costs amount of any additional contribution called for by the Managing Partner pursuant to this Section 3.1, and, except as provided in Section 3.1(b), neither the Partnership nor any Advancing Partner shall have the right or expensesability to collect the amount required to be contributed by the Defaulting Partner from any assets belonging to such Defaulting Partner. Any call for additional capital contributions pursuant to Section 3.1(b) shall be made solely at the discretion of the Managing Partner, other than those and the existence of liabilities of the Partnership in excess of the amount of assets available to discharge such liabilities shall not, in the absence of a call by the Managing Partner for further contributions pursuant to this Section 3.1, create a liability on the part of the Partners for additional capital contributions to meet such deficit. The obligations of Partners to make additional capital contributions as set forth in Section 2.3(a3.1(b) or (b) above, and does not have sufficient funds their liabilities to pay such expenses (apart from Finova Fees, Stock Proceeds or the FNV Stock), upon demand by the Company or by either Member, the Members shall promptly make Capital Contributions sufficient to pay such costs Partnership and expenses (without drawing upon such Finova Fees, Stock Proceeds or the FNV Stock, which assets other Partners with respect thereto shall not be applied by the Company to satisfy such Company expenses, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof) in accordance with the following:
(i) with respect to costs and expenses incurred in the operation of the Company's Business from the Formation Date through the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Fee Percentages; provided, however, that with respect to confer any -------- ------- origination, commitment or similar up-front fees payable in connection with the Outside Financing, the Members shall make such Capital Contributions in accordance with their Debt Percentages;
(ii) with respect to costs and expenses incurred in the operation of the Company's Business following the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Debt Percentages; provided, however, that -------- ------- the Members shall make such Capital Contributions in accordance with their Stock Percentages with respect to costs and expenses attributable to the ownership of the FNV Stock;
(iii) the Original Berkshire Member agrees to contribute (or cause to be contributed) to B-Sub, and the Original Leucadia Member agrees to contribute (or cause to be contributed) to L-Sub, an amount sufficient in each case for such Member to fund its Required Capital Contributions as and when required under this Section 2.3(c); and
(iv) notwithstanding (i) - (iii) above, Section 12.2 shall control Capital Contributions required to fund costs and expenses that constitute Covered Lossesrights on any third parties.
(d) If B-Sub or L-Sub (the "defaulting Member") fails to fund its Required Capital Contributions as and when required, whether pursuant to this Section 2.3, Section 12.2, or otherwise, the non-defaulting Member (other than Berkadia-Management) shall have a direct claim against the defaulting Member for breach of contract hereunder, and the non-defaulting Member and the Company (at the sole direction of the non-defaulting Member) shall have all remedies available to either of them in law or equity with respect to such failure by the defaulting Member. Without limiting the foregoing, (i) interest shall accrue on a defaulting Member's unfunded Capital Contributions from the date required to be made at a per annum rate equal to the "prime rate" (as specified in the Wall Street Journal or similar national publication) plus two percentage points ("prime plus two"), compounded annually, (ii) the non-defaulting Member shall be entitled to contribute to the Company the amount of such unfunded Capital Contributions, and (iii) to the extent the non-defaulting Member has funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member under this Agreement, whether pursuant to Section 4.1, upon liquidation of the Company pursuant to Section 10.2, or otherwise, shall be distributed by the Company to the non-defaulting Member, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the non-defaulting Member has received from the Company on account of such distributions a return of the amount, if any, funded in place of the defaulting Member, plus interest thereon from the date funded at prime plus two, compounded annually. To the extent the non-defaulting Member has not funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member shall be retained by the Company, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the Company has retained an amount of such distributions equal to the amount not funded by the defaulting Member (or by the non-defaulting Member pursuant to the immediately preceding sentence), plus interest thereon from the date required to be made at prime plus two, compounded annually. A defaulting Member shall remain in default hereunder until it has contributed, or is deemed to have contributed, to the Company, all amounts required to be contributed under this Section 2.3(d), including interest. Beginning on the date that is 10 days after the receipt of written notice from the Company or the non-defaulting Member that the recipient Member is in default hereunder, the defaulting Member shall not have any voting, consent or appointment rights as a Member, or any other rights to direct the Company in any manner, during the continuation of such default.
Appears in 1 contract
Required Capital Contributions. (a) If the Outside Financing cannot be obtained on terms and conditions acceptable to the Manager, but the Company is required to advance funds to FCC pursuant to the terms of the Commitment, then on or before the date such funds are required to be advanced, Berkadia-Management shall fund to the Company an amount of Capital Contributions that, when combined with the Outside Financing actually obtained, is sufficient to satisfy the Company's obligations under the Commitment.
(b) If any payment, including any amount of principal, interest or similar item, or any amount attributable to indemnification obligations of the Company under the Outside Financing Documents, is due to be paid to the lenders who have provided the Outside Financing and the Company does not have sufficient funds to make such payment (apart from Finova Fees, Stock Proceeds or the FNV Stockany Net Interest Savings), then on or before the date such funds are required to be paid, Berkadia- Management the Members shall fund to the Company Company, pro rata in accordance with their Debt Percentages, an amount of Capital Contributions that is sufficient to pay the amounts required to be paid (without drawing upon such Finova Fees, Stock Proceeds or the FNV StockNet Interest Savings, which assets shall not be applied by the Company to satisfy such Company obligations, payment and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof). Consistent with the preceding sentence, and pursuant to Section 18-303(b) of the Act, Berkadia-Management BH Finance hereby agrees to be liable for all 90 percent of the Company's obligations under the Outside Financing and WMAC hereby agrees to be liable for 10 percent of the Company's obligations under the Outside Financing, and no other Member shall bear any responsibility or liability for any portion of such Company obligations.
(cb) If the Company incurs costs or expenses, other than those set forth in Section 2.3(a) or (b) above, and does not have sufficient funds to pay such expenses (apart from Finova Fees, Stock Proceeds or the FNV Stockany Net Interest Savings), upon demand by the Company or by either Member, the Members shall promptly make Capital Contributions sufficient to pay such costs and expenses (without drawing upon such Finova Fees, Stock Proceeds or the FNV StockNet Interest Savings, which assets shall not be applied by the Company to satisfy such Company expenses, payment and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof) in accordance with the following:
(i) with respect to costs and expenses incurred in the operation of the Company's Business from the Formation Date through the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Fee Percentages; provided, however, that with respect to any -------- ------- origination, commitment or similar up-front fees payable in connection with the Outside Financing, the Members shall make such Capital Contributions in accordance with their Debt Percentages;
(ii) with respect to costs and expenses incurred in the operation of the Company's Business following the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Debt Percentages; provided, however, that -------- ------- the Members Section 12.2 shall make such control Capital Contributions in accordance with their Stock Percentages with respect required to fund costs and expenses attributable to the ownership of the FNV Stock;that constitute Covered Losses.
(iiic) the Original Berkshire Member agrees to contribute (or cause to be contributed) to B-SubBH Finance, and the Original Leucadia Member agrees to contribute (or cause to be contributed) to L-SubWMAC, an amount sufficient in each case for such Member to fund its Required Capital Contributions as and when required under this Section 2.3(c); and
(iv) notwithstanding (i) - (iii) above, Section 12.2 shall control Capital Contributions required to fund costs and expenses that constitute Covered Losses2.3.
(d) If B-Sub BH Finance or L-Sub WMAC (the "defaulting Member") fails to fund its Required Capital Contributions as and when required, whether pursuant to this Section 2.3, Section 12.2, or otherwise, the non-defaulting Member (other than Berkadia-Management) shall have a direct claim against the defaulting Member for breach of contract hereunder, and the non-defaulting Member and the Company (at the sole direction of the non-defaulting Member) shall have all remedies available to either of them in law or equity with respect to such failure by the defaulting Member. Without limiting the foregoing, (i) interest shall accrue on a defaulting Member's unfunded Capital Contributions from the date required to be made at a per annum rate equal to the "prime rate" (as specified in the Wall Street Journal or similar national publication) plus two percentage points ("prime plus two"), compounded annually, (ii) the non-defaulting Member shall be entitled to contribute to the Company the amount of such unfunded Capital Contributions, and (iii) to the extent the non-defaulting Member has funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member under this Agreement, whether pursuant to Section 4.1, upon liquidation of the Company pursuant to Section 10.2, or otherwise, shall be distributed by the Company to the non-defaulting Member, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the non-defaulting Member has received from the Company on account of such distributions a return of the amount, if any, funded in place of the defaulting Member, plus interest thereon from the date funded at prime plus two, compounded annually. To the extent the non-defaulting Member has not funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member shall be retained by the Company, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the Company has retained an amount of such distributions equal to the amount not funded by the defaulting Member (or by the non-defaulting Member pursuant to the immediately preceding sentence), plus interest thereon from the date required to be made at prime plus two, compounded annually. A defaulting Member shall remain in default hereunder until it has contributed, or is deemed to have contributed, to the Company, all amounts required to be contributed under this Section 2.3(d), including interest. Beginning on the date that is 10 days after the receipt of written notice from the Company or the non-defaulting Member that the recipient Member is in default hereunder, the defaulting Member shall not have any voting, consent or appointment rights as a Member, or any other rights to direct the Company in any manner, during the continuation of such default.
Appears in 1 contract
Required Capital Contributions. (a) If (i) the Outside Financing cannot be obtained on terms and conditions reasonably acceptable to the ManagerMembers, but the Company is required to advance funds to FCC and/or FNV pursuant to the terms of the Commitment, then on or before the date such funds are required to be advanced, Berkadia-Management shall fund to the Company an amount of Capital Contributions that, when combined with the Outside Financing actually obtained, is sufficient to satisfy the Company's obligations under the Commitment.
(bii) If any payment, including any amount of principal, principal or interest or similar item, or any amount attributable to indemnification obligations of the Company under the Outside Financing Documents, otherwise is due to be paid to the lenders who have provided the Outside Financing and the Company does not have sufficient funds to make such payment (apart from Finova Fees, Stock Proceeds or the FNV Stock)payment, then on or before the date such funds are required to be advanced or paid, Berkadia- Management the Members shall fund to the Company Company, pro rata in accordance with their Debt Percentages, an amount of Capital Contributions that that, (x) in the case of clause (i) of this sentence, when combined with the Outside Financing actually obtained, is sufficient to satisfy the Company's obligations under the Commitment, or (y) in the case of clause (ii) of this sentence, is sufficient to pay the amounts required to be paid (without drawing upon such Finova Fees, Stock Proceeds or the FNV Stock, which assets shall paid. If Outstanding Financing is not be applied by the Company to satisfy such Company obligationsobtained in full, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof). Consistent with the preceding sentence, and pursuant Leucadia elects to Section 18-303(b) of the Act, Berkadia-Management hereby agrees seek financing to be liable for fund any or all of its Required Capital Contribution under Section 2.3(a)(i), Berkshire agrees that it shall provide to the Companylender or lenders to Leucadia a primary guarantee of Leucadia's payment obligations under such financing, on standard terms and conditions, limited to the Outside Financing, and no other Member shall bear any responsibility or liability for any portion amount of such Company obligationsRequired Capital Contribution.
(cb) If the Company incurs costs or expenses, other than those set forth in Section 2.3(a) or (b) above, and does not have sufficient funds to pay such expenses (apart from Finova Fees, Stock Proceeds or the FNV Stock)expenses, upon demand by the Company or by either Member, the Members shall promptly make Capital Contributions sufficient to pay such costs and expenses (without drawing upon such Finova Fees, Stock Proceeds or the FNV Stock, which assets shall not be applied by the Company to satisfy such Company expenses, and shall retain their status as such items for all purposes of this Agreement, including for purposes of applying Section 4.1 hereof) in accordance with the following:
(i) with respect to costs and expenses incurred in the operation of the Company's Business from the Formation Effective Date through the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Fee Percentages; provided, however, that with respect to any -------- ------- origination, commitment or similar up-front fees payable in connection with the Outside Financing, the Members shall make such Capital Contributions in accordance with their Debt Percentages;
(ii) with respect to costs and expenses incurred in the operation of the Company's Business following the date of, and after giving effect to, the funding of the Senior Loan, the Members shall make such Capital Contributions in accordance with their Debt Percentages; provided, however, that -------- ------- the Members shall make such Capital Contributions in accordance with their Stock Percentages with respect to costs and expenses attributable to the ownership of the FNV Stock;and
(iii) the Original Berkshire Member agrees to contribute (or cause to be contributed) to B-Sub, and the Original Leucadia Member agrees to contribute (or cause to be contributed) to L-Sub, an amount sufficient in each case for such Member to fund its Required Capital Contributions as and when required under this Section 2.3(c); and
(iv) notwithstanding (i) - and (iiiii) above, Section 12.2 shall control Capital Contributions required to fund costs and expenses that constitute Covered Losses.
(dc) If B-Sub or L-Sub one Member (the "defaulting Member") fails to fund its Required required Capital Contributions as and when required, whether pursuant to this Section 2.3, Section 12.2, or otherwise, the non-defaulting Member (other than Berkadia-Management) shall have a direct claim against the defaulting Member for breach of contract hereunder, and the non-defaulting Member and the Company (at the sole direction of the non-defaulting Member) shall have all remedies available to either of them in law or equity with respect to such failure by the defaulting Member. Without limiting the foregoing, (i) interest shall accrue on a defaulting Member's unfunded Capital Contributions from the date required to be made at a per annum rate equal to the "prime rate" (as specified in the Wall Street Journal or similar national publication) plus two percentage points ("prime plus two"), compounded annually, (ii) the non-defaulting Member shall be entitled to contribute to the Company the amount of such unfunded Capital Contributions, and (iii) to the extent the non-defaulting Member has funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member under this Agreement, whether pursuant to Section 4.1, upon liquidation of the Company pursuant to Section 10.2, or otherwise, shall be distributed by the Company to the non-defaulting Member, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the non-defaulting Member has received from the Company on account of such distributions a return of the amount, if any, funded in place of the defaulting Member, plus interest thereon from the date funded at prime plus two, compounded annually. To the extent the non-defaulting Member has not funded in place of the defaulting Member, amounts otherwise distributable to the defaulting Member shall be retained by the Company, but deemed for all purposes of this Agreement as distributed to the defaulting Member and immediately recontributed to the Company as Required Capital Contributions, until such time as the Company has retained an amount of such distributions equal to the amount not funded by the defaulting Member (or by the non-defaulting Member pursuant to the immediately preceding sentence), plus interest thereon from the date required to be made at prime plus two, compounded annually. A defaulting Member shall remain in default hereunder until it has contributed, or is deemed to have contributed, to the Company, all amounts required to be contributed under this Section 2.3(d), including interest. Beginning on the date that is 10 days after the receipt of written notice from the Company or the non-defaulting Member that the recipient Member is in default hereunder, the defaulting Member shall not have any voting, consent or appointment rights as a Member, or any other rights to direct the Company in any manner, during the continuation of such default.
Appears in 1 contract
