Common use of Subsequent Capital Contributions Clause in Contracts

Subsequent Capital Contributions. Subject to the prior approval of the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%) of the outstanding Membership Voting Interests at any time and from time to time, the Board of Managers may request, but not require, that every Member and Interest Holder make additional contributions of capital to the Company. Each such request made to every Member and Interest Holder initially shall be for such proportion of the total additional contribution of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership Interests held by all of the Members and the Interest Holders. If all of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital to the Company up to the total amount of contributions of capital to the Company requested in accordance with the foregoing but not made (the “Uncontributed Amount”), each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but (b) ultimately in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members and Interest Holders elect to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, then the Membership Interests of Members and Interest Holders who elect to make such additional contributions of capital to the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except in accordance with the terms and provisions of this Section 9.3.

Subsequent Capital Contributions. Subject (a) No Member will be required by this Agreement to the prior approval of the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%) of the outstanding Membership Voting Interests at make any time and from time to time, the Board of Managers may request, but not require, that every Member and Interest Holder make additional contributions of capital Capital Contribution to the Company. Each such request made to every Member and Interest Holder initially shall be for such proportion of the total additional contribution of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership Interests held by all of the Members and the Interest Holders. If all of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital to the Company up to the total amount of contributions of capital to the Company requested in accordance with the foregoing but not made (the “Uncontributed Amount”), each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but . (b) ultimately in such proportion of Subject to Section 4.2(g), if the total Uncontributed Amount as the Membership Interest Board reasonably determines that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members is in need of additional Capital Contributions and Interest Holders elect to make should issue additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, then the Membership Interests of Members and Interest Holders who elect to make such additional contributions of capital to the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions Units or any securities convertible into or exercisable for Units (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except “New Units”) in accordance with the terms and provisions of this Agreement in order to raise such capital, then each Record Holder of Series A Preferred Units as of a Record Date determined by the Board (each, an “Eligible Purchaser”) shall have a preemptive right, but not an obligation, to fund any such additional Capital Contributions pro rata in accordance with its proportionate ownership of all Series A Preferred Units outstanding at the time (such capital call, a “New Issuance”). (c) For each New Issuance, the Board shall deliver written notice (a “New Issuance Notice”) to each Eligible Purchaser not less than 30 days prior to the funding date of such New Issuance, setting forth the amount of the requested Capital Contributions, the date on which the requested Capital Contributions are required to be made and the New Units to be issued in respect thereof; (d) Each Eligible Purchaser shall have the right to elect to purchase up to its pro rata share (based on its proportionate ownership of all Series A Preferred Units outstanding at the time) of such New Units (an Eligible Purchaser’s “Base Amount”) at the price per Unit and upon the terms and conditions set forth in the New Issuance Notice. Each Eligible Purchaser desiring to exercise its preemptive right in respect of a New Issuance shall deliver a written notice (an “Election Notice”) to the Company within 20 days from the receipt of a New Issuance Notice (the “Election Period”), which notice shall state (i) how many New Units such Eligible Purchaser commits to purchasing, up to its Base Amount, and (ii) whether such Eligible Purchaser would be willing to purchase additional New Units if other Eligible Purchasers do not commit to purchase such other Eligible Purchasers’ Base Amounts. (e) If an Eligible Purchaser (i) elects, in whole or in part, not to exercise its preemptive right in respect of a New Issuance, (ii) fails to deliver an Election Notice in respect of a New Issuance or (iii) fails to contribute all or a portion of the capital such Eligible Purchaser committed to fund, in each case within the applicable Election Period (a “Non-Participating Member”, and the Units which such Non-Participating Member did not purchase, the “Unsubscribed Units”), then each Eligible Purchaser who has timely funded its Base Amount and elected to purchase additional New Units (each, a “Participating Member”) may, but will not be obligated to, purchase Unsubscribed Units, pro rata based upon the relative portion of such Participating Member’s Base Amount in relation to the aggregate of the Base Amount of all Participating Members. If one or more Participating Member fails to purchase the entire amount of Unsubscribed Units which such Participating Member is eligible to purchase, the Board may offer any such Unsubscribed Units to the other Participating Members, pro rata. (f) If the Eligible Purchasers fail to fully fund all or a portion of any valid capital call approved by the Board, the Board may issue a capital call to the Common Members for any remaining Unsubscribed Units in accordance with the same principles set forth in this Section 9.3.4.2

Subsequent Capital Contributions. Subject Except as provided herein with respect to MarkWest, no Member shall be required to make any Subsequent Capital Contribution to the prior approval Company, except as may be required under applicable law. If the Company is required to make a capital contribution to the Partnership under the provisions of the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%Section 5.2(b) of the outstanding Membership Voting Interests at any time and from time to timePartnership Agreement, the Board of Managers may request, but not require, that every each Class B Member and Interest Holder make additional contributions of capital to the Company. Each such request made to every Member and Interest Holder initially shall be for such proportion of the total additional contribution of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership Interests held by all of the Members and the Interest Holders. If all of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital a Subsequent Capital Contribution to the Company up for that purpose in an amount equal to, and only equal to, its Membership Interest percentage of the required capital contribution to the total Partnership. If any Class B Member does not make such Subsequent Capital Contribution ("Non-Contributing Member"), then MarkWest will be required to make, in addition to its owns Subsequent Capital Contribution, the amount of contributions of capital the Subsequent Capital Contribution not made by the Non-Contributing Member in order for the Company to make its required contribution to the Partnership. If the Subsequent Capital Contributions made to the Company requested are other than in accordance with the foregoing but not made (the “Uncontributed Amount”), proportion to each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Member's Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but (b) ultimately in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members and Interest Holders elect to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisionsInterest, then the Membership Interests shall be adjusted to reflect the disproportionate Subsequent Capital Contributions in the following manner: MIR = MI(CAD/CTY) + PI(ACC) --------------------- (CAD/CTY) + ACC Where: MI is the Member's Membership Interest, as a percentage, before the Subsequent Capital Contributions ACC is the total Subsequent Capital Contribution of all Members and Interest Holders who elect making a Subsequent Capital Contribution PI is the Member's percentage Subsequent Capital Contribution of the ACC MIR is the Member's revised Membership Interest, as a percentage, after the Subsequent Capital Contributions made in order for the Company to make such additional any required contributions of capital to under the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except in accordance with the terms and provisions of this Section 9.3.Partnership Agreement

Subsequent Capital Contributions. Subject to the prior approval of the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%a) of the outstanding Membership Voting Interests at The Venturers (except Paddlewheels and any time and Affiliate thereof) from time to timetime may, but shall not be obligated to, make additional capital contributions to the Venture ("Subsequent Capital Contributions") in cash as needed to meet the needs of the Venture. Paddlewheels and any Affiliate thereof shall not be permitted or required to make Subsequent Capital Contributions. (b) The Management Committee shall authorize and approve Subsequent Capital Contributions and shall give written notice (the "Notice of Subsequent Capital Contribution") to each Venturer of the decision of the Management Committee that Subsequent Capital Contributions are necessary in connection with the Project. Such notices will state (i) the total amount of additional capital required by the Venture, (ii) the amount of additional capital that each of Sodak, HWCC or any other eligible Venturer is required to contribute, which shall be based on their relative Subsequent Contribution Ownership Ratios as provided in Section 3.3(d) below, (iii) the use of proceeds of the requested Subsequent Capital Contribution, including a reasonable itemization of such use, and (iv) the date by which the contribution shall be made (the "Contribution Date"), which date shall not be less than 20 days after mailing of the Notice of Subsequent Capital Contribution. In the event a Venturer elects not to contribute its pro rata share of Subsequent Capital Contributions that is authorized and approved by the Management Committee pursuant to this Section 3.3, then the other contributing Venturers may elect to contribute such unpaid portion of Subsequent Capital Contributions on a pro rata basis in accordance with their Subsequent Contribution Ownership Ratio (which shall not include, for purposes of calculating the foregoing, the Board JV Interests of Managers may request, but not require, the non-contributing Venturer). (c) Each Venturer that every Member and makes a Subsequent Capital Contribution shall be credited with one additional JV Interest Holder make for each additional contributions of capital dollar contributed by such party to the Company. Each Venture. (d) The allocation of any Subsequent Capital Contribution among the contributing Venturers will be based on the "Subsequent Contribution Ownership Ratio" for each contributing Venturer which shall be, for each such request made contributing Venturer, (i) the quotient equal to every Member and Interest Holder initially shall be for the number of JV Interests held by such proportion of contributing Venturer, divided by the total additional contribution number of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership outstanding JV Interests held by all Venturers (other than Paddlewheels and any Affiliate thereof), (ii) multiplied by (100), immediately prior to the issuance of the Members and the Interest Holders. If all Notice of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital to the Company up to the total amount of contributions of capital to the Company requested in accordance with the foregoing but not made (the “Uncontributed Amount”), each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but (b) ultimately in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members and Interest Holders elect to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, then the Membership Interests of Members and Interest Holders who elect to make such additional contributions of capital to the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except in accordance with the terms and provisions of this Section 9.3Subsequent Capital Contribution.

Subsequent Capital Contributions. Subject to (a) As between the prior approval Members, and without creating any rights in favor of any third party, if the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%) of the outstanding Membership Voting Interests at any time and from time to time, the Board of Managers may request, but not require, unanimously agree in writing that every Member and Interest Holder make additional contributions of capital shall be made to the Company. Each such request made to every , each Member and Interest Holder initially shall be for obligated to contribute such proportion amounts to the capital of the total additional contribution of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership Interests held by all of the Members and the Interest Holders. If all of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital to the Company up to the total amount of contributions of capital to the Company requested in accordance with the foregoing but not made (the “Uncontributed Amount”), each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but (b) ultimately in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members and Interest Holders elect to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, then the Membership Interests of Members and Interest Holders who elect to make such additional contributions of capital to the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except in accordance with the terms of such agreement. (b) If a Member (the “Delinquent Member”) does not pay when due to the Company all or any portion of a capital contribution that is required to be paid, the Company, upon written request by the other Member, shall exercise one or more of the following remedies (or other remedies as available at law or in equity), as specified by the other Member, and shall provide notice thereof to the Delinquent Member: (i) charging interest to the Delinquent Member on the unpaid portion of such required payment at the sum of (A) the “prime rate” or “reference rate” of interest quoted in The Wall Street Journal published on the due date plus (B) two percent (2%) per annum (such sum being the “Default Interest Rate”) from the date that such payment was due until the date that it is made; (ii) taking such action as the other Member may deem appropriate to obtain payment by the Delinquent Member of the required payment, including (A) instituting a dispute resolution procedure pursuant to Section 11.9 or (B) withholding any distributions otherwise payable to the Delinquent Member; (iii) permitting (but not requiring) the other Member (“Lending Member”) to deliver to the Company all or any portion of the Delinquent Member’s unpaid required payment, with the following results: (A) the sum delivered constitutes a loan from the Lending Member to the Delinquent Member pursuant to the applicable provisions of this Agreement; (B) the principal balance of such loan and all accrued unpaid interest thereon is due and payable in whole on the tenth (10th) business day after written demand therefor by the Lending Member to the Delinquent Member; (C) the unpaid principal balance of such loan bears interest at the Default Interest Rate from the date that such loan is made until the date that the principal balance, together with all interest accrued thereon, is repaid to the Lending Member; (D) all distributions from the Company that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company) instead shall be paid to the Lending Member, for credit against the unpaid interest accrued thereon and the unpaid balance of such loan, until the principal balance and all interest accrued thereon shall have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal), but all such payments to the Lending Member shall be treated for all other purposes of this Agreement as a distribution to the Delinquent Member, and (E) the Lending Member shall have the right (in addition to the other rights and remedies granted to it pursuant to this Agreement, including but not limited to rights and remedies pursuant to Sections 5.6 and 8.1(c) herein, or available to it at law or in equity) to take, after five business days’ advance written notice to the Delinquent Member, such action (including arbitration proceedings under Section 9.311.9 below) as the Lending Member may deem appropriate to obtain payment by the Delinquent Member of the principal balance of such loan and all interest accrued thereon, at the cost and expense of the Delinquent Member.

Subsequent Capital Contributions. Subject Except as provided herein with respect to MarkWest, no Member shall be required to make any Subsequent Capital Contribution to the prior approval Company, except as may be required under applicable law. If the Company is required to make a capital contribution to the Partnership under the provisions of the vote or written consent of Members holding SEVENTY-FIVE PERCENT (75%Section 5.2(b) of the outstanding Membership Voting Interests at any time and from time to timePartnership Agreement, the Board of Managers may request, but not require, that every each Class B Member and Interest Holder make additional contributions of capital to the Company. Each such request made to every Member and Interest Holder initially shall be for such proportion of the total additional contribution of capital requested from all of the Members and the Interest Holders as the Membership Interest that such Member or Interest Holder holds bears to the total Membership Interests held by all of the Members and the Interest Holders. If all of the Members and the Interest Holders do not make additional contributions of capital to the Company within TEN (10) days after being so requested, then those Members and Interest Holders who make such additional contributions of capital to the Company within that period (the “Contributing Members and Interest Holders”) collectively and individually shall have the right and option within TEN (10) days after such initial TEN (10) day period to make more additional contributions of capital a Subsequent Capital Contribution to the Company up for that purpose in an amount equal to, and only equal to, its Membership Interest percentage of the required capital contribution to the total Partnership. If any Class B Member does not make such Subsequent Capital Contribution ("Non-Contributing Member"), then MarkWest will be required to make, in addition to its owns Subsequent Capital Contribution, the amount of contributions of capital the Subsequent Capital Contribution not made by the Non-Contributing Member in order for the Company to make its required contribution to the Partnership. If the Subsequent Capital Contributions made to the Company requested are other than in accordance with the foregoing but not made (the “Uncontributed Amount”), proportion to each Contributing Member and Interest Holder individually (a) first in such proportion of the total Uncontributed Amount as the Member's Membership Interest that each Contributing Member or Interest Holder holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders but (b) ultimately in such proportion of the total Uncontributed Amount as the Membership Interest that each Contributing Member or Interest Holder electing to exercise such right and option holds bears to the total Membership Interests held by all of the Contributing Members and Interest Holders electing to exercise such right and option. The foregoing formula contemplates the possibility that, within such second TEN (10) day period, any ONE (1) of the Contributing Members or Interest Holders individually (if no other Contributing Member or Interest Holder elects to contribute any part of the Uncontributed Amount in accordance with the foregoing formula) may make an additional contribution of capital to the Company equaling the entire Uncontributed Amount. If certain Members and Interest Holders elect to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisions, and certain other Members and Interest Holders elect not to make additional contributions of capital to the Company upon request in accordance with the foregoing terms and provisionsInterest, then the Membership Interests shall be adjusted to reflect the disproportionate Subsequent Capital Contributions in the following manner: MI(R) = MI(CAD/CTY) + PI(ACC) --------------------- (CAD/CTY) + ACC Where: MI is the Member's Membership Interest, as a percentage, before the Subsequent Capital Contributions ACC is the total Subsequent Capital Contribution of all Members and Interest Holders who elect making a Subsequent Capital Contribution PI is the Member's percentage Subsequent Capital Contribution of the ACC MI(R) is the Member's revised Membership Interest, as a percentage, after the Subsequent Capital Contributions made in order for the Company to make such additional any required contributions of capital to under the Company shall increase accordingly, and the Membership Interests of Members and Interest Holders who elect not to make such additional contributions of capital to the Company shall be diluted in accordance with the Members’ aggregate capital contributions (with the capital contributions as of the date hereof as set forth on Schedule A attached hereto. The Board of Managers has no authority to, and shall not, request that any Member or Interest Holder make an additional contribution of capital to the Company except in accordance with the terms and provisions of this Section 9.3.Partnership Agreement