Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
Appears in 5 contracts
Samples: Letter Agreement (Bioceres S.A.), Letter Agreement (Bioceres S.A.), Letter Agreement (Bioceres S.A.)
Additional Capital Contributions. (a) From time to timeExcept as otherwise may be expressly provided herein, the Management CommitteeMembers shall not be required to make additional capital contributions. The Manager shall have the discretion to request, subject in writing, additional Capital Contributions from each Member in proportion to approval by a Supermajority their Membership Percentage (“Capital Call”) in Interest the event that the Company has insufficient funds to operate the Business of the MembersCompany or to make required payments on any debt of the Company; provided, may determine however, the timing and amount of a Capital Call must be reasonable. S ection 8.4 Failure to Pay Capital. Should any Member fail to pay the amount of any Capital Call requested by Manager pursuant to this Article 8 (the “Defaulting Member”), any other Member may, at his, her or its election, make the required payment on behalf of the Defaulting Member; provided however, that any Member who/which intends to make such a payment shall first provide written notice of that intention to all other Members (including the Defaulting Member); and the Defaulting Member shall have five (5) days to cure its failure to pay by making payment of the required Capital Contributions Call, plus interest on such amount from the date it was due until the date paid, at the Applicable Rate, in addition good and sufficient US funds. If the Defaulting Member has so affected its cure, no Member will have any further rights under this Section with respect to the Initial Members’ prior Capital Contributions are needed failure, which has been cured. Any Member which makes a payment to enable the Company on behalf of a Defaulting Member pursuant to conduct its business this Section 8.4 (a “Contributing Member”) shall treat the payment as an additional capital contribution to the capital of the Company for the Contributing Member’s own Capital Account, and in such case, the Contributing Member’s and Defaulting Member’s Ownership Percentage in the Company shall be adjusted in accordance with the Work Planformula set forth below. On making such If more than one Member elects to be a determinationContributing Member, then all contributing Members shall contribute on a pro rata basis determined by the Management Committee shall give written notice ratio of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are neededrespective Membership Interest of the Contributing Members. The notice shall set forth respective Ownership Percentage of each Contributing Member and the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Defaulting Member shall be required to make an additional adjusted and recalculated in accordance with the following formula: Contributing Member: [(Membership Percentage of Contributing Member multiplied by total invested Capital Contribution. However, except as contemplated of Company) plus (Amount of Additional Capital Contributed by an applicable Work Plan, each Contributing Member shall be given on behalf of himself/herself/itself and the opportunity to make such additional Defaulting Member)] divided by [(Total invested Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under ) plus (total Additional Capital Contributions contributed to the definition Company pursuant to Section 8.3)] Defaulting Member: [(Membership Percentage of Gross Asset Value in Appendix 1 attached hereto, and Defaulting Member multiplied by total invested Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held Company)] divided by each Member after the issuance [(Total invested Capital of the additional Units and Company) plus total Additional Capital Contributions contributed to the total number of Units then outstanding.Company pursuant to Section 8.3)]
Appears in 3 contracts
Samples: Operating Agreement, Operating Agreement, Operating Agreement
Additional Capital Contributions. If, at any time and from time to time after the Closing Contributions required to be contributed pursuant to Article 3 have been contributed to the LLC, Administrative Member determines that additional funds are necessary to meet the needs or obligations of the LLC or any of its Subsidiaries, but solely to the extent of costs and expenses that: (a) From are related to any Emergency, (b) are described and set forth in the Approved Budget or Approved Business Plan (but solely to the extent that the Approved Budget or Approved Business Plan provides that Additional Capital Contributions will be required to fund such costs and expenses), (c) are needed to pay for (i) any uncontested liability or obligation of a Member or an Affiliate of a Member under any Guaranty in accordance with Section 6.13 or by the LLC to pay any uncontested obligation guaranteed under a Guaranty for which the LLC is the primary obligor, or (ii) to make any payment due or perform any obligation of any Subsidiary under the Loan Documents or Franchise Agreement, and/or (e) subject to the Condor Member’s approval, are otherwise necessary in the Administrative Member’s judgment, the Administrative Member shall have the right to deliver a Notice to the Members (a “Capital Call Notice”) that additional cash Capital Contributions (“Additional Capital Contributions”) are required to be made to the LLC in the amount of such additional funds. If, at any time and from time to timetime after the Closing Contributions have been contributed to the LLC, the Management Committee, subject to approval by a Supermajority in Interest Condor Member reasonably determines that additional funds are necessary for any of the Memberspurposes described in (a) to (e) above or to meet the operational needs or the obligations of the LLC or its Subsidiaries, may determine that then Condor Member shall have the right to deliver a Capital Call Notice for Additional Capital Contributions in addition to the Initial Members’ prior . Each Capital Call Notice shall specify in writing (A) the specific purpose for which the Additional Capital Contributions are needed to enable required, (B) the Company to conduct its business in accordance with aggregate amount of the Work Plan. On making such a determinationAdditional Capital Contributions being called, the Management Committee shall give written notice (C) each Member’s share of such determination Additional Capital Contributions, and (D) the due date for funding such Additional Capital Contributions, which due date shall not be less than ten (10) Business Days (or such sooner date as required with respect to all Members at least thirty (30any Emergency) days before after the date on which such additional Capital Contributions are neededCall Notice is given. The notice Each Member shall fund its share of each Additional Capital Contribution on or prior to the due date set forth in the amount applicable Capital Call Notice. Each Member’s share of additional each Additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member pursuant to clauses (a)-(c) above shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment , and each Member’s share of an additional each Additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(aclause (d) above shall be determined by dividing (i) as set forth in Section 6.13. No Member shall have the Company Valuation by (ii) right to call for any additional capital contributions to the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted LLC except as expressly provided above and in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingArticle 3.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Condor Hospitality Trust, Inc.), Limited Liability Company Agreement (Condor Hospitality Trust, Inc.), Limited Liability Company Agreement (Condor Hospitality Trust, Inc.)
Additional Capital Contributions. (a) From time to timeExcept as otherwise may be expressly provided herein, the Management CommitteeMembers shall not be required to make additional capital contributions. The Manager shall have the discretion to request, subject in writing, additional Capital Contributions from each Member in proportion to approval by a Supermajority their Membership Percentage (“Capital Call”) in Interest the event that the Company has insufficient funds to operate the Business of the MembersCompany or to make required payments on any debt of the Company; provided, may determine however, the timing and amount of a Capital Call must be reasonable. ection 8.4 Failure to Pay Capital. Should any Member fail to pay the amount of any Capital Call requested by Manager pursuant to this Article 8 (the “Defaulting Member”), any other Member may, at his, her or its election, make the required payment on behalf of the Defaulting Member; provided however, that any Member who/which intends to make such a payment shall first provide written notice of that intention to all other Members (including the Defaulting Member); and the Defaulting Member shall have five (5) days to cure its failure to pay by making payment of the required Capital Contributions Call, plus interest on such amount from the date it was due until the date paid, at the Applicable Rate, in addition good and sufficient US funds. If the Defaulting Member has so affected its cure, no Member will have any further rights under this Section with respect to the Initial Members’ prior Capital Contributions are needed failure, which has been cured. Any Member which makes a payment to enable the Company on behalf of a Defaulting Member pursuant to conduct its business this Section 8.4 (a “Contributing Member”) shall treat the payment as an additional capital contribution to the capital of the Company for the Contributing Member’s own Capital Account, and in such case, the Contributing Member’s and Defaulting Member’s Ownership Percentage in the Company shall be adjusted in accordance with the Work Planformula set forth below. On making such If more than one Member elects to be a determinationContributing Member, then all contributing Members shall contribute on a pro rata basis determined by the Management Committee shall give written notice ratio of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are neededrespective Membership Interest of the Contributing Members. The notice shall set forth respective Ownership Percentage of each Contributing Member and the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Defaulting Member shall be required to make an additional adjusted and recalculated in accordance with the following formula: Contributing Member: [(Membership Percentage of Contributing Member multiplied by total invested Capital Contribution. However, except as contemplated of Company) plus (Amount of Additional Capital Contributed by an applicable Work Plan, each Contributing Member shall be given on behalf of himself/herself/itself and the opportunity to make such additional Defaulting Member)] divided by [(Total invested Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under ) plus (total Additional Capital Contributions contributed to the definition Company pursuant to Section 8.3)] D efaulting Member: [(Membership Percentage of Gross Asset Value in Appendix 1 attached hereto, and Defaulting Member multiplied by total invested Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held Company)] divided by each Member after the issuance [(Total invested Capital of the additional Units and Company) plus total Additional Capital Contributions contributed to the total number of Units then outstanding.Company pursuant to Section 8.3)]
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Additional Capital Contributions. (a) From Additional Capital Contributions may be called for from the Limited Partners by the General Partner by written notice to the Limited Partners from time to time, time as and to the Management Committee, subject extent capital is necessary (i) to approval by a Supermajority effect investments in Interest of the Members, may determine that Capital Contributions in addition Investment Opportunities subsequent to the Initial Members’ prior Capital Contributions are needed Acquisition that have been approved by JVP and Starwood or (ii) to enable pay expenditures for the Company to conduct its reasonable needs of the business (including the operating and administrative expenses of General Partner) which have been approved or directed by the General Partner in accordance with the Work Planprovisions of this Agreement and the GP Agreement. On making such a determination, It is anticipated that all Capital Contributions required in connection with any Investment Opportunity will be made at the Management Committee shall give written notice closing of the acquisition of such determination investment in accordance with the business plan and budget contained in the applicable Investment Memorandum. Notwithstanding the needs of the Partnership and with respect to all Members at least thirty the assets constituting the Initial Acquisition only, in no event (30) days before the date on which such additional Capital Contributions are needed. The notice shall other than as set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member Section 9.14) shall JVP be required to make Capital Contributions in excess of an aggregate of One Million Dollars ($1,000,000) (such maximum aggregate Capital Contributions amount by JVP, the “JVP Cap”) and the provisions of Section 5.2(b) shall not apply to contributions made by Starwood after JVP has reached the JVP Cap; provided, however, that the foregoing JVP Cap and suspension of Section 5.2(b) shall not apply with respect to investments in Investment Opportunities subsequent to the Initial Acquisition that have been approved by JVP and Starwood, in their respective sole discretion. Except as otherwise agreed in writing by the Partners, additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member Contributions shall be given in an amount for each Limited Partner equal to the opportunity product of the amount of the aggregate Capital Contribution called for (such aggregate amount, the “Required Capital”) multiplied by such Limited Partner’s respective Percentage Interest, provided that if JVP’s share of the Required Capital amount shall cause the JVP Cap to make be exceeded, JVP’s additional Capital Contribution requirement shall be limited by such JVP Cap and the deficit amount needed to satisfy the Required Capital shall be contributed by Starwood as part of its required Capital Contribution to satisfy the Required Capital. The Capital Contributions required to be made by JVP shall be contributed or advanced, as the case may be, in cash by JVP from its own sources (and shall not be borrowed or constitute proceeds from a Transfer of a direct interest in JVP or the Interest of JVP, but may be funded through the Transfer of indirect interests in JVP subject to continued compliance with the JVP Ownership/Control Requirement). Such additional Capital Contributions shall be payable by the Limited Partners to the Partnership on the date when the Capital Contribution is required, as set forth in a written request from the General Partner which, in the absence of a circumstance reasonably requiring the funds sooner, shall not be earlier than twenty (20) days from the date of such written request, and which shall be reasonably based upon the timeline for the use of such Additional Capital Contribution as determined in good faith by the General Partner. Notwithstanding anything herein to the contrary, if additional cash is needed by the Partnership to acquire Property which has been designated by Starwood as a Rental Pool Asset or to avoid or satisfy a Rental Pool Deficit or to support the (A) ownership, operation or management of any Rental Pool Asset prior to the date the such Rental Pool Asset is the subject of a foreclosure sale or otherwise assigned, sold, transferred, or distributed by the Partnership or (B) the costs of causing the foreclosure sale, assignment, sale, transfer or Distribution of the applicable Rental Pool Asset, any additional Capital Contributions made to satisfy such need shall be both determined in size (except for Rental Pool Deficits which must be fully funded) and made exclusively by Starwood, and Starwood shall provide written notice to each other Partner each time it makes an additional Capital Contribution in proportion to respect of the Rental Pool (each such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding“Rental Pool Additional Contribution”).
Appears in 2 contracts
Samples: Limited Partnership Agreement (Starwood Waypoint Residential Trust), Limited Partnership Agreement (Starwood Waypoint Residential Trust)
Additional Capital Contributions. (a) From time to time, Except as may be explicitly -------------------------------- agreed in writing by the Management Committee, subject to approval by a Supermajority in Interest of Member and the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work PlanCompany, no Member shall be required to make an any additional Capital ContributionContributions. HoweverIf the Manager notifies the Members, except as contemplated by an applicable Work Planfrom time to time upon at least twenty (20) days' prior written notice, each Member shall be given the opportunity to make such that additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued Contributions are necessary for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by acquisition, development and construction of the Card Club and the remodeling and furnishing of the Hotel and related activities in accordance with the Budget in effect from time to time or (ii) the number acquisition and/or leasing of Units outstanding immediately prior the Card Club Site or other property pursuant to the DDA or (iii) such improvements to the Card Club Site or other property acquired and/or leased pursuant to the DDA as are agreed upon by a Super Majority Interest or (iv) the payment of Card Club Liabilities or (v) such additional expenses as may be incurred after such time as applicable law is amended to permit public companies to operate card clubs or HPI or HPC is otherwise legally permitted to operate the Card Club, in connection with the formation of Newco and in connection with the operation by Newco of the Card Club or (vi) any other business purpose of the Company (collectively, "Additional Capital Contributions") each of the Members shall have the right, but not the obligation, to contribute as Additional Capital an amount equal to its respective Profit Percentage Interest of such Additional Capital Contribution. Immediately before issuing UnitsIf any Member elects not to make such Additional Capital Contribution (the "Non-participating Member Contribution"), and HPC contributes its Profit Percentage Interest of such Additional Capital Contribution, then HPC shall be entitled to contribute as an Additional Capital Contribution an amount equal to the Gross Asset Value Non-participating Member Contribution. To the extent that the Members do not contribute their respective Profit Percentage Interests of the Company’s assets will Additional Capital Contributions, their Profit Percentage Interests shall be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingaccordance with Section 2.7.
Appears in 2 contracts
Samples: Operating Agreement (Hollywood Park Fall Operating Co), Operating Agreement (Hollywood Park Inc/New/)
Additional Capital Contributions. (a) From time to time, If either Managing Member determines in the Management Committee, subject to approval by a Supermajority in Interest exercise of the Members, may determine its reasonable business judgment that Capital Contributions in addition to the Initial Members’ prior Additional Capital Contributions are needed necessary for the operation of the business of the Company or a Subsidiary, or to enable the Company or a Subsidiary to conduct perform its business obligations under the Lease (other than the Company’s or Subsidiary’s obligations under the Lease to pay or reimburse Skechers for the costs of storage of Skechers’ property), which cannot be funded from Available Cash or obtained through financing (or which are impractical to be obtained through financing), such Managing Member may (but shall not be required to) give notice to the other Managing Member, including the amount required and the purposes therefor. Such Additional Capital Contributions shall be contributed by the Members according to their respective Contribution Percentages within ten (10) days after receipt of such notice calling for such Additional Capital Contributions (which amounts shall then be immediately contributed by the Company to the appropriate Subsidiary). Failure by a Member to make its required Additional Capital Contribution shall give the other Member the rights and remedies specified in Section 4.1.5. If a Member who receives a call for an Additional Capital Contribution disputes the reasonableness of such Additional Capital Contribution, it shall give notice to the Member who made such call within such ten (10) day period, and if the Members cannot resolve the dispute within ten (10) Business Days thereafter, the dispute shall be submitted to expedited arbitration as set forth in Article 15. During the pendency of such arbitration, even though the Member who failed to make the Additional Capital Contribution shall not be deemed to be a Default Member under Section 4.1.5(c), the other Member may elect to loan to the Company the amount which the other Member failed to contribute in accordance with the Work Planprovisions of Section 4.1.5(d)(i) (which amounts shall then be immediately contributed by the Company to the appropriate Subsidiary). On making Provided, however, that if it is determined through arbitration that such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Additional Capital Contribution needed(or part thereof) was not reasonable, then the purpose for loan (to the extent of any amount which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall was not determined to be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(areasonable) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingnot bear interest.
Appears in 2 contracts
Samples: Development Management Agreement (Skechers Usa Inc), Development Management Agreement (Skechers Usa Inc)
Additional Capital Contributions. (a) From If at any time to time, the Management CommitteeCommittee determines to raise additional capital for the Partnership for any Partnership Business purpose, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, then the Management Committee shall give first issue a written notice to the Partners (a “Call Notice”) setting forth the amount of Capital Contributions the Management Committee desires to raise (the “Call Amount”) and the intended purpose of such determination Capital Contributions, the number of GP Units to all Members at least thirty (30) days before be issued with respect to such Capital Contributions and the date on which such additional Capital Contributions are neededdue, and each Partner shall have the right, but not the obligation, to contribute its pro rata share based on its Sharing Ratio (as of the date of such Call Notice) of such Call Amount in accordance with this Section 5.2(a). If any Partner desires to exercise its rights under this Section 5.2(a), it must deliver a written notice to the Partnership and each other Partner within ten Business Days after the Partner’s receipt of the Call Notice (the “Election Period”) setting forth the portion of the Call Amount such Partner (the “Electing Partner”) is electing to contribute, up to its Sharing Ratio plus any additional portion of the Call Amount it desires to contribute in excess of its Sharing Ratio (the “Over-Allotment Amount”) if other Partners do not exercise all or any portion of their rights hereunder. The notice right of each Electing Partner to fund the Call Amount in excess of its Sharing Ratio shall set forth be based on the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion relative Sharing Ratios of the Management CommitteeElecting Partners desiring to fund Over-Allotment Amounts (or in such other manner as all of the Electing Partners agree to allocate the right to fund among themselves). If any Electing Partner elects to contribute any portion of the Call Amount, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member such Electing Partner shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity obligated to make such additional Capital Contribution on the date set forth in proportion the Call Notice (or such other date as the Management Committee may determine), and upon receipt of such Capital Contribution, the Partnership shall issue to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) Electing Partner the number of GP Units outstanding immediately prior applicable to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value portion of the CompanyCall Amount contributed by such Electing Partner. Notwithstanding the foregoing, with respect to any two Partners that are Affiliates, at the election of such Partners, one such Partner shall be entitled to contribute all or a portion of the other such Partner’s assets will pro rata share of any Call Amount or Over-Allotment Amount. Any such issuance and payment in respect thereof shall be adjusted in a manner provided delayed, to the extent required, to obtain any necessary governmental approvals, waivers and consents required for such issuance (including any approvals under the definition of Gross Asset Value in Appendix 1 attached heretoHSR Act); provided, that if such approval, waiver or consent is required by any Electing Partner to consummate such closing and Capital Accounts will reflect such new Gross Asset Value. Following approval, waiver or consent is not obtained within 40 Business Days after the issuance of additional Unitsscheduled closing date, if necessary, the Management Committee then such Electing Partner shall re-compute the Percentage Interests be deemed to have waived its right to contribute any portion of the Members based on the total number of Units held by each Member after the issuance Call Amount and such Electing Partner shall not be deemed to have breached its obligation to contribute such portion of the additional Units and the total number of Units then outstandingCall Amount.
Appears in 2 contracts
Samples: General Partnership Agreement (Regency Energy Partners LP), General Partnership Agreement (Regency Energy Partners LP)
Additional Capital Contributions. If a Member, in connection with an Archstone Residual Asset, Assumed Archstone Liability or administrative function or responsibility for which it has been designated as a Designated Manager, determines (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest after taking into account any existing cash reserves of the Members, may determine Company) that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are capital is needed to enable (i) restore operating reserves to a level as contemplated in the applicable Approved Business Plan or Annual Budget, (ii) fund any cash needs of the Company to conduct its business as contemplated in any applicable Approved Business Plan or as would not exceed the amounts that may be expended in accordance with Section 4.3(i), or arise pursuant to Authorized Unilateral Decisions, (iii) fund Emergency Costs (provided that, in the Work Plan. On making such a determinationcase of any Emergency Costs applicable to the asset of any Outside Partnership, the amount of capital that may be called under this Section 3.3(b) by the applicable Designated Manager without the Approval of the Management Committee or the Members shall give written be limited to the Company’s or applicable Subsidiary Entity’s proportional funding share in such Outside Partnership), (iv) fund Non-Discretionary Funding Requirements (provided that, in the case of any Non-Discretionary Funding Requirements applicable to the asset of any Outside Partnership, the amount of capital that may be called under this Section 3.3(b) by the applicable Designated Manager without the Approval of the Management Committee or the Members shall be limited to the Company’s or applicable Subsidiary Entity’s proportional funding share in such Outside Partnership), or (v) fund to any Designated Manager any fees or expense reimbursements due to it hereunder or fund to any Covered Person any amounts due on account of any of the Company’s indemnification obligations or obligations to advance expenses as provided for in Section 7.1 or 7.2, such Designated Manager shall issue a notice of such determination to all Members at least thirty (30a “Funding Notice”) days before substantially in the date on which such additional Capital Contributions are needed. The notice shall set form attached hereto as Exhibit 1 setting forth the amount of additional capital being requested (the “Additional Capital Contribution needed, the purpose for which it is needed, Requested Amount”). A Member may also deliver a Funding Notice as provided in Section 4.15(c). Within ten (10) Business Days following the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu receipt of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work PlanFunding Notice, each Member shall be given pay to the opportunity to make such additional Company as a Capital Contribution in proportion to such Member’s Percentage InterestProportionate Share of the Additional Capital Requested Amount. Upon payment of an additional Capital Contribution Any funds advanced by the Members to the Company pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such constitute additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of Contributions to the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Avalonbay Communities Inc), Limited Liability Company Agreement (Erp Operating LTD Partnership)
Additional Capital Contributions. Notwithstanding anything else in this Agreement to the contrary, (ai) From time except for the GS Investment Amount to timebe contributed to the Company by GS pursuant to the Purchase Agreement, GS shall not be required to make any Capital Contribution unless such Capital Contribution has been approved by GS in writing, and (ii) no other Member shall make, or be required to make, any Capital Contribution except in accordance with this Section 3.2 and/or Section 3.3. The Board shall consider any capital requirements of the Management Committee, subject to approval by a Supermajority in Interest of Company and will notify the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least no less than thirty (30) days before prior to the need therefor, of any projected need for additional Capital Contributions in order to fund operations or to further the purposes of the Company. The Class A Members shall be required to make additional Capital Contributions only if such additional Capital Contributions are approved by all of the Class A Members in writing. The Board shall give the Class A Members notice of each request for additional Capital Contributions that has been approved by the Class A Members in accordance with this Section 3.2 (each, a “Capital Call”) at least fifteen (15) days prior to the date on which the Capital Contributions are due and will include in such Capital Call, in reasonable detail, (i) the purpose or purposes for which additional Capital Contributions are required, (ii) the amount of the additional Capital Contribution to be made by each Class A Member and the number of additional Units or other securities, if any, to be issued as a result of such Capital Call, (iii) whether such issued Units or other securities, if any, will be Voting Units or Non-voting Units, and (iv) the date on which such additional Capital Contributions are neededmust be made. The notice shall set forth Unless otherwise agreed by all of the amount of additional Capital Contribution neededClass A Members in writing, the purpose for which it is needed, the date by which the Class A Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an any additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution Contributions requested pursuant to this Section 3.2(a)3.2 pro rata based on the number of Class A Units then held by each such Class A Member as compared to the aggregate number of Class A Units then held by all Class A Members. Except as otherwise provided herein or as agreed to by all of the Class A Members in writing, the Company shall issue Class A Members will have the preemptive right to acquire any additional Units to each contributing Member, with each new Unit being be issued in return for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted Contributions in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingaccordance with Section 6.6.
Appears in 2 contracts
Samples: Operating Agreement (Ada-Es Inc), Operating Agreement (Ada-Es Inc)
Additional Capital Contributions. (a) From time If the Company requires additional capital for a Permitted Purpose, then, to timethe extent any Participating Member reasonably believes the funds required to accomplish such Permitted Purpose cannot reasonably be obtained from existing funds or operating activities during the relevant period, such Participating Member may send a notice (a “Call Notice”) to the Management Committee, subject other Members that sets forth: (i) the relevant Permitted Purpose; (ii) the aggregate amount the Participating Member submitting the Call Notice has determined is required to approval by a Supermajority in Interest accomplish such Permitted Purpose (the “Capital Call Amount”); (iii) the amount of each Member’s pro rata share of the MembersCapital Call Amount (the “Pro Rata Share”), may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business determined in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice Membership Interest of such determination to all Members at least thirty (30) days before Member as of the date on which such of the Call Notice (provided that with respect to a Call Notice for additional Capital Contributions are needed. The notice capital contributions required to be funded pursuant to Section 7.3(c), each Member’s Pro Rata Share shall set forth be deemed to be its Pro Rata Share as of the amount of additional Capital Contribution needed, the purpose for which it is needed, Effective Date); and (iv) the date by which the Members may contribute such additional amountsCapital Call Amount must be paid to the Company, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member which date shall be required to make an additional Capital Contributionnot less than 20 days following the date of delivery of such Call Notice. However, except as contemplated by an applicable Work PlanWithin ten days after the date of receipt of such Call Notice, each Member shall be given notify the opportunity other Members, the Administrative Member, and the Managers whether such Member intends to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional any Additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing such Call Notice (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional any Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member Contributions made after the issuance date hereof solely for purposes of funding the additional Units accomplishment of a Permitted Purpose are referred to herein as “Additional Capital”). Notwithstanding anything to the contrary contained herein, Owner Member shall not be permitted to deliver a Call Notice if a Key Person Event has occurred and the total number of Units then outstandinga Key Person Event Cure has not occurred with respect thereto.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (New York REIT, Inc.), Membership Interest Purchase Agreement (New York REIT, Inc.)
Additional Capital Contributions. (a) From time Subject to timeSection 5.2(b), any additional funds required by the Partnership to meet its cash requirements shall, to the extent possible, be provided by Partnership borrowings from third parties, upon such terms and conditions as Approved by the General Partners. (b) Subject to Section 5.2(b) hereof, if for any period beginning on or after the date PCI shall have fully funded its Additional Capital Contribution, the Management Committee, subject to approval by a Supermajority in Interest sun of the Memberscapital contributions, may determine that loan proceeds, reserves, proceeds from Interim Capital Contributions in addition Transactions and Net Cash Flow of the Partnership is or is reasonably anticipated to be insufficient to meet and pay Partnership debts and obligations as they become, due and payable (the amount of such shortfall of. Partnership funds being hereinafter referred to as the Deficit), and the Partnership is unable to borrow such funds upon terms satisfactory to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determinationGeneral Partners, the Management Committee Managing Partner shall give written notice to the other General Partner of the total amount of such determination Deficit (provided, however, that the other General Partner may give the notice described in this Section 5.2(b) if the Managing Partner fails to all Members at least do so and, in the reasonable judgment of the other General Partner, there is or will soon be a Deficit). The Managing Partner hereby agrees to give the other General Partner reports and statements similar to those described in Section 5.1(c) hereof and such other information regarding such Deficit as may be reasonably requested. Within thirty (30) days after delivery of such notice, PCI and Linpro shall each contribute their pro rata share of such amount (based on their relative Contribution Interests) as an additional capital contribution to the Partnership. (c) All additional capital contributions required to be made pursuant to Section 5.2(b) shall be paid directly into an escrow account with a bank located in Maryland designated by the Managing Partner pursuant to an escrow agreement acceptable to the Managing Partner. The funds deposited in such account shall be released to the Partnership only (i) at the time both General Partners have made their required additional capital contribution, or (ii) if one General Partner fails to timely make its required additional capital contribution in whole or in part, at the time the other General Partner elects to undertake and performs the actions described in Section 5.2(d) (i) or (ii). (d) If any General Partner fails to make any of its additional contributions to the capital of the Partnership pursuant to Section 5.2(b) on or before the date on which specified therein, and such additional Capital Contributions are neededPartner fails to cure such failure within ten (10) days after written notice thereof from the other General Partner, such Partner that has failed to make its contribution (Defaulting Partner) shall be in default as of the date such contribution was due (and such date of default shall be sometimes herein referred to as the Date of Default). The notice shall set forth Upon the occurrence of any such default, the non-defaulting General Partner (Nondefaulting Partner) may, as its and the Partnership's sole and exclusive remedy, elect any one (but not more than one) of the following remedies: (i) contribute to the Partnership the amount of the additional Capital capital contribution required of the Defaulting Partner but not contributed by such Defaulting Partner and elect (by written notice thereof to the Defaulting Partner) to treat the entire amount of the Nondefaulting Partner's contribution (including the amount that will be released to the Partnership from the escrow account described in Section 5.2(d) hereof upon such election) as a Deficit Contribution. (ii) contribute to the Partnership as an additional capital contribution of the Nondefaulting Partner the amount of the additional contribution required of the Defaulting Partner but not contributed by such Defaulting Partner and elect (by written notice thereof to the Defaulting Partner) to adjust the Partners' Contribution neededInterest and Percentage Interest in the Partnership as set forth below. In such event, the purpose for which it is needed, Contribution Interest and Percentage Interest of the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is notDefaulting Partner shall, in the opinion case of additional capital contributions to fund Site Improvements, engineering costs or any other expenses related to the site development of the Management CommitteeProperty (Development Costs), appropriate be reduced at the rate of one percentage point for every ten thousand dollars ($10,000), and in lieu the case of additional capital contributions required to fund costs of the Partnership other than Development Costs, be reduced at a rate of one (1) percentage point for every fifteen thousand dollars ($15,000), that the Defaulting Partner failed to contribute under Section 5.2(b), and the Contribution Interest and Percentage Interest in the Partnership of the Nondefaulting Partner (or its assignee or designee, as the case may be) shall be increased by the same number of percentage points that the Contribution Interest and Percentage Interest in the Partnership of the Defaulting Partner is decreased pursuant to the, terms and provisions of this Section 5.2(d)(ii). Solely for purposes of calculating the dilution of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Defaulting Partner's contribution Interest and Percentage Interest. Upon payment of an additional Capital Contribution pursuant to interest under this Section 3.2(a5.2(d), the Company shall issue additional Units amount of capital that the Defaulting Partner was required to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this contribute under Section 3.2(a5.2(b) shall be determined by dividing assuming that the Defaulting Partner's Contribution Interest is always fifty percent (50%), For example, if contributions of Two Hundred Thousand Dollars ($200,000) were required under Section 5.2(b) for Development Costs, the Defaulting Partner was required and failed to contribute One Hundred Thousand Dollars ($100,000)and the Nondefaulting Partner elected to dilute the Defaulting Partner in accordance with this Section 5.2(d)(ii), the Defaulting Partner's Contribution Interest would be diluted by ten (10) percentage points, from fifty percent (50%) to forty percent (40%) and the Defaulting Partner's Percentage Interest would be diluted by ten (10) percentage points, from forty-nine and 50/100s percent (49.5%) to thirty-nine and 50/100s percent (39.5%) if, subsequently, further additional capital contributions of $300,000), were required under Section 5.2(b) for other than Development Costs and the Defaulting Partner failed to contribute its pro rata. Share ($120,000, or 40% of $300,000), and the Nondefaulting Partner again elected to dilute the Defaulting Partner in accordance with this Section 5.2(d)(ii), the Defaulting Partner's Contribution Interest would be diluted by ten (10) percentage points, from forty percent (40%) to thirty percent (30%) and the Defaulting Partner's Percentage Interest would be diluted by ten (10) percentage points, from thirty-nine and 50/100s percents (39.5%) to twenty-nine and 50/100s percent (29.5%), as if it has been required to contribute $150, 000, or fifty percent (50%) of $300,000. (e) Each Partner acknowledges and agrees that it would not be entering into this Agreement were it not for (i) the Company Valuation other Partner agreeing to make the capital contributions required by Section 5.1(c) and, this Section 5.2 and (ii) the number remedy provisions set forth in this Agreement, and in particular Sections 5. 1 (d) and 5.2 (d). Each Partner further acknowledges and agrees that (i) in the event that any Partner fails to satisfy its obligations pursuant to Sections 5.1(c) .and 5.2(b) of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Unitsthis Agreement, the Gross Asset Value other Partners and the Partnership may have no adequate remedy at law for such breach, (ii) that any reduction in the Defaulting Partner's Partnership interest or right to distributions as a result of the Company’s assets exercise of one of the remedies provided in Sections 5.1(d) and 5.2(d) hereof is intended as liquidated damages and not as a penalty by reason of the fact that the damages resulting from a breach hereof would be impossible to ascertain at the time hereof or of such breach, and (iii) the remedies set forth in sections 5.1(d) and 5.2(d) are fair, just and equitable in all respects. Each General Partner hereby irrevocably constitutes and appoints the other General Partner (and each of its general partners or officers, as the case may be) as its true and lawful attorney-in-fact, in its name, place and stead, to make, execute, consent to, swear to, acknowledge, deliver, record and file such assignments, other documents which absolute discretion of conveyances , agreements, instruments or may be necessary, in the sole and the other General Partner, to confirm and render fully effective the remedies set forth in sections 5.1,(d) and 5.2(d) or any other remedies set forth in this Agreement. It is expressly understood, intended and agreed by each of the Partners for itself, its administrators, legal representatives, successors and assigns, that the grant of this power of attorney to the other General Partner and to the general partners or officers of the other General Partner pursuant to this Section 5.,2(e) is irrevocable and is coupled with an interest by reason of the facts, among others, that the other General Partner will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessaryrelying on its power to act as contemplated by this provision, the Management Committee shall re-compute other General Partner would not have entered into this Agreement were it not for the Percentage Interests of the Members based on the total number of Units held powers granted to it by each Member after the issuance of the additional Units these provisions and the total number other General Partner has rights in the Partnership property which the power is needed to protect. The grant of Units then outstandingthis power of attorney shall survive the subsequent death, legal incompetency, disability, incapacity, bankruptcy, retirement or withdrawal of any Partner or the partners. or other beneficial owners of any Partner or the assignment of its or their interests in the Partnership or in such Partner, as the case may be. 5.3.
Appears in 1 contract
Additional Capital Contributions. (a) From If at any time or from time to timetime after the Effective Date, additional funds (a "Shortfall") are required (a) for the reasonable working capital needs of the Company for both operating and capital needs, and (b) for all other costs and expenses (whether operating or capital in nature) in connection with the operation of the Projects or in connection with the operations of the Subsidiaries or the Company, in each case as determined by the Executive Committee, and the Company is unable to obtain or the Executive Committee has determined not to seek third party debt financing, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Executive Committee may determine that call (but shall not be obligated to) for Additional Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of such Shortfall and the Members shall make such Additional Capital Contributions as called for by the Executive Committee. Notwithstanding the foregoing, to the extent that an Annual Business Plan approved by the Executive Committee contemplates that the Members will make Additional Capital Contributions to pay such Shortfall or if the Shortfall is required to pay costs and expenses of the Company or a Subsidiary described in the definition of "Non-discretionary Additional Capital Contributions" that in the good faith judgment of a Member are needed by the Company, then the Members shall make Additional Capital Contributions in the amount of such Shortfall on the request of either the Manager or any Member. Capital items for which reserves have been established pursuant to the approved Annual Business Plan will be funded first from the reserves therefor before any calls are made for Additional Capital Contributions to pay for such capital items. Notwithstanding anything to the contrary contained in this Agreement, Additional Capital Contributions shall not be used to pay Pursuit Costs, Cost Overruns (which are the responsibility of the Developer Member) or any costs and expenses included within the Project Development Costs for a Project (other than Project Permitted Excess Construction Interest), but Non-Discretionary Additional Capital Contributions may be used to pay Project Permitted Excess Construction Interest and the cost to carry a Project to break-even after such Project's Final Completion Date. Each additional Capital Contribution needed, the purpose for which it made under this Section 6.2 is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a an "Additional Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional " and also either a "Discretionary Additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional " or a "Non-Discretionary Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding".
Appears in 1 contract
Samples: Limited Liability Company Agreement (Storage Usa Inc)
Additional Capital Contributions. (a) From time to time, In the Management Committee, subject to approval by event that the Company does not obtain a Supermajority in Interest of the Members, may determine that Capital Contributions in addition Third-party Loan on terms acceptable to the Initial Members’ prior Capital Contributions are needed Executive Committee to enable fund a Shortfall, or any Member shall have made a Recourse Payment, either Member or the Company Executive Committee may (but is not obligated to) deliver a notice (each, a “Funding Notice”) to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set setting forth the amount of additional the Recourse Payment or Shortfall (as the case may be) and a description in reasonable detail of the basis of such Recourse Payment or Shortfall (as the case may be), together with supporting calculations and relevant material documentation. The decision to send a Funding Notice may be made by such Member or the Executive Committee without regard to any Member’s ability to pay its share of the Recourse Payment or Shortfall (as the case may be). Each Member shall have the right, but not the obligation, to make (or to cause one of its Affiliates to make on its behalf) capital contributions to the Company in an amount equal to its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within ten (10) Business Days after receipt of a Funding Notice (“Additional Capital Contribution neededContributions”). If a Member (the “Non-Contributing Member”) fails to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within the ten (10) Business Day period, any amounts funded (directly or indirectly) by the other Member (the “Contributing Member”) towards its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) shall not be considered an Additional Capital Contribution, but rather, at such Member’s option, shall either (i) be refunded to the Contributing Member in its entirety, or (ii) be treated as a Priority Loan to the Company. In the event that the Contributing Member chooses to have the amount of Recourse Payment or Shortfall (as the case may be) funded by such Member treated as a Priority Loan, such Member shall also have the option, but not the obligation, to fund the portion of the Recourse Payment or Shortfall (as the case may be) that was not contributed by the Non-Contributing Member as a loan to the Company. Any such loans shall be made within ten (10) Business Days after the Contributing Member receives notice or acquires knowledge of the fact that the Non-Contributing Member has elected not to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be). The outstanding principal of any loans made by a Contributing Member under this Section 4.4 shall accrue interest at a rate equal to eighteen percent (18%) per annum, compounded monthly (the “Priority Rate”), which interest shall be added to the principal (such principal and interest, together, the purpose for which it is needed“Priority Loan”). All Priority Loans shall be repaid in accordance with Article 5; provided, however, that the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu Priority Loan of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Contributing Member shall be required extinguished and be deemed paid in full upon the Non-Contributing Member funding an amount equal to make its Percentage Membership Interest multiplied by the then outstanding amount of such Contributing Member’s Priority Loan, the proceeds of which shall be immediately distributed to the Contributing Member in accordance with Section 5.3(b) and the remaining unpaid balance of the Priority Loan shall be converted to and deemed to be an additional Additional Capital ContributionContribution by the Contributing Member. HoweverNotwithstanding anything to the contrary contained herein, except as contemplated by an applicable Work Plan, each the Duke Member shall be given not have the opportunity right to make such additional Capital send a Funding Notice during any period of time that the Duke Member has failed to pay a Rent Subsidy (as defined in the applicable Contribution in proportion Agreement) with respect to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingany Property.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Cb Richard Ellis Realty Trust)
Additional Capital Contributions. (a) From If at any time or from time to timetime after all of the Initial Capital Contributions have been contributed, the Management CommitteeManaging Member determines that additional funds (a “Shortfall”) are reasonably required (i) to meet the ongoing obligations, subject to approval by a Supermajority in Interest liabilities, expenses or other reasonable business needs of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured then applicable Budget or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Operating Plan, no Member shall be required to make an additional Capital Contribution. Howeverincluding in connection with the Planned Renovation, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by or (ii) for any other purpose as reasonably determined by the number Managing Member relating to the Company and/or the ownership, operation, development and/or management of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value any portion of the Company’s assets will be adjusted in a manner provided under Company Property or for any other purpose which is not adverse or contrary to the definition of Gross Asset Value in Appendix 1 attached heretothen applicable Budget or Operating Plan, and Capital Accounts will reflect the Managing Member has determined to request additional capital to fund such new Gross Asset Value. Following Shortfall, then the issuance Managing Member shall deliver notice (a “Participation Notice”) to each of additional Units, if necessary, the Management Committee shall re-compute Members offering each Member the right to contribute (subject to the consequences specified herein) its pro rata share (based upon the Percentage Interests of the Members based on at the total number time of Units held such request) of such Shortfall (such pro rata share, an “Additional Capital Contribution”). If so requested by the Managing Member, each Member who elects to fund any Additional Capital Contribution shall do so within fifteen (15) Business Days after receipt of a Participation Notice. In addition to any Additional Capital Contributions made under this Agreement, the issuance Members acknowledge and agree that any amounts paid by the Members or their respective Affiliates pursuant to the terms of the additional Units Reimbursement Agreement shall be deemed Additional Capital Contributions. Notwithstanding the foregoing or anything to the contrary herein: (A) the Members shall be required to make all Additional Capital Contributions required to fund the Planned Renovation, and (B) if the total number Managing Member does not call capital in an amount sufficient to fund the Planned Renovation, the Budget or Operating Plan or any other Necessary Expenses of Units the Company, then outstandingXxxxxx Street shall have the right to make such capital call without any approval of the Managing Member and shall have all of the rights of the Managing Member under this Article IV or otherwise with respect to such capital call and any failure by the Managing Member to fund its pro rata portion thereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Strategic Hotels & Resorts, Inc)
Additional Capital Contributions. (a) From time to timeUpon the consent of a Majority of Members, the Management Committee, subject Manager shall have the right to approval by require additional capital contributions (“Capital Calls”) from the Members to be paid on a Supermajority in Interest of the Members, may determine that Capital Contributions in addition pro rata basis as to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business all Members in accordance with the Work Planpercentages set forth on Schedule A. The Manager may obtain Company loans to cover any Company required Additional Capital Contributions, with the consent of the Members holding a majority of the Membership Interest in the Company. On making such In the event that a determinationMember fails to, or refuses to contribute towards a Capital Call (the “Defaulting Member”), then either: The remaining Members may elect to purchase the Membership Interest from the Defaulting Member, at a 15% discount to the Defaulting Member’s Initial Capital Contribution; or The remaining Members may elect to contribute the necessary funds (the “Lending Members”) on behalf of the Defaulting Member which shall be considered a loan to the Defaulting Member, to be secured by its Membership Interest in the Company. Any loan given to the Company by the Lending Member on behalf of the Defaulting Member, shall accrue interest at a rate of 300 basis points above LIBOR per annum. In the event of a Distribution by the Manager under Article 5 herein or under a dissolution of the Company under Article 10 herein, the Management Committee Manager shall give written notice use the funds attributable to the Defaulting Member, to first pay off any loans to the Defaulting Member by the Lending Member. In furtherance of such determination any loan to all any Defaulting Member by the Lending Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution neededin accordance with this Section, the purpose for Members hereby expressly agree to execute any and all loan documents which it is neededthe Company’s attorneys deem necessary, including but not limited to; a Note, Guaranty, Loan Agreement, and Pledge Agreement. Furthermore, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Defaulting Member shall be required responsible to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), pay for all legal fees that the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value incur in furtherance of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingloan.
Appears in 1 contract
Samples: Area Development Agreement (Harrison Vickers & Waterman Inc)
Additional Capital Contributions. (a) From If at any time, and from time to time, the Management Committee, subject to approval by a Supermajority Administrative Member or the NorthStar Member determines that additional funds in Interest excess of the MembersInitial Capital Contributions, may determine that Capital Contributions in addition Receipts and available Reserves are necessary to meet the needs or obligations of the Venture or any of its Subsidiaries, but solely to the Initial Members’ prior Capital Contributions extent of costs and expenses that are (i) needed to enable the Company to conduct its business fund Non-Discretionary Expenses, (ii) incurred in accordance with the Work Plan. On making such a determinationApproved Business Plan and Budget (including Management Fees payable to the Manager pursuant to any Management Agreement) or, subject to the terms of this Agreement (including Sections 7.02 and 7.07(e)), the Management Committee Approved Long Term Business Plan, or (iii) that are reasonably determined by the NorthStar Member to be necessary to maintain each of the Facilities as a high quality senior housing community and maximize the value of each of the Facilities; provided, that the NorthStar Member shall give not be permitted, without the consent of the TFG Member as a Major Decision pursuant to Section 7.02(l), to make aggregate Additional Capital Contribution Requests pursuant to this clause (iii) (together with any Additional Capital Contribution Requests (as defined in the Owner Venture Agreement) made pursuant to clause (iii) of Section 5.02(b) of the Owner Venture Agreement) in an amount in excess of $2,500,000 in any Fiscal Year or $5,000,000 in any period of three (3) consecutive Fiscal Years; and determines to call for additional Capital Contributions to fund the same (“Additional Capital Contributions”), the Administrative Member or the NorthStar Member, as applicable, shall deliver to each Member a written notice (an “Additional Capital Contribution Request”) of the need for Additional Capital Contributions (which may be made by email but requires confirmation by the receiving party of receipt of such determination email). Additional Capital Contributions shall be funded by the Members on a pro rata basis in proportion to all their respective Percentage Interests. Each Additional Capital Contribution Request shall specify the aggregate amount of Additional Capital Contributions that the Administrative Member or NorthStar Member, as applicable, has determined are required to be made by the Members at least thirty (30pursuant to this Section 5.02(a) days before and each Member’s pro rata share thereof and the date on which such additional determining Member has determined such Additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional be made by the Members (the “Additional Capital ContributionContribution Date”), which date shall not be earlier than fifteen (15) Business Days from the date that the Additional Capital Contribution Request in question is given. However, except as contemplated by an applicable Work Plan, each Each Member shall be given contribute, on or before the opportunity to make such additional Additional Capital Contribution in proportion to Date, such Member’s Percentage Interest. Upon payment pro rata share of an additional the aggregate Additional Capital Contributions specified in such Additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingRequest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Additional Capital Contributions. Upon a written capital call by the Sole Manager provided at least 30 days’ prior to the Capital Contribution being due, each Member shall make additional Capital Contributions (ai) From time up to timeaggregate combined Capital Contributions after the Effective Date of $60,000,000, if approved by a majority of the Management CommitteeBoard, (ii) in connection with additional Capital Contributions unanimously approved by the Board as provided in Section 5.6(c), or (iii) in connection with a Company Opportunity unanimously approved by the Board as provided in Section 5.17. Except as provided in this Section 3.2 and subject to approval by a Supermajority in Interest the provisions of Section 5.6 (insofar as not limiting the express provisions of the Membersfirst sentence of this Section 3.2(a)) and Section 5.17, may determine that or in connection with the issuance of additional Membership Interests as provided in this Agreement, no Member shall have any right or obligation to make additional Capital Contributions in addition or loans to the Initial Members’ prior Company. Obligations to make additional Capital Contributions are needed to enable shall be borne by the Company to conduct its business Members pro rata in accordance with their respective Sharing Ratios. The Sole Manager is obligated to offer Units to the Work PlanMembers on a pro rata basis, based on the Members’ Sharing Ratios, before offering Units to or accepting an offer to purchase Units from any other Person. On making such Upon determination to seek additional Capital Contributions or upon a determinationthird party’s offer to purchase Units from the Company, the Management Committee Sole Manager shall give written notice deliver to the Members a Notice of such determination to all Members Additional Capital Contributions at least thirty (30) days before in advance of the date on which time such additional Capital Contributions are neededrequired to be made to the Company. The notice Notice of Additional Capital Contributions shall set forth the amount of additional Capital Contribution neededContributions sought, the purpose for which it is neededeach Member’s pro rata portion of such amount, and the date by which such Capital Contribution is to be made. Each Member shall notify the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion Sole Manager within 10 days after delivery of the Management Committee, appropriate in lieu Notice of a Additional Capital Contributions whether such Member elects to make its applicable Capital Contribution. Except for services as contemplated by If a Member delivers notice to the Sole Manager that it will not make the additional Capital Contribution or if the Member has not indicated an applicable Work Plan, no Member shall be required intent to make the additional Capital Contribution by expiration of the initial 10-day period from the delivery of the Notice of Additional Contributions, the Sole Manager shall give the other Member written notice of the uncommitted portion of the additional Capital Contribution sought and permit such other Member an additional ten days to commit to pay the uncommitted portion of the additional Capital ContributionContributions. HoweverIf the other Member declines or fails to respond during the ten-day period, except as contemplated by an applicable Work Planthen the Sole Manager may, each Member shall be given for the 90-day period following such other Member’s determination or failure to respond, offer to other Persons the opportunity to make such the remaining uncommitted Capital Contribution, on the same terms as were available to the Members. Any additional Capital Contribution that a Member is required or elects to make shall be made to the Company in proportion immediately available funds on or before the date specified in the applicable notice (which date shall not be less than 30 days prior to the delivery of such Member’s Percentage Interestnotice). Upon payment The provisions of an additional Capital Contribution pursuant to this Section 3.2(a), 3.2 shall not apply in the context of the sale of the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingor other comparable transaction.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Par Petroleum Corp/Co)
Additional Capital Contributions. (a) From No party shall be entitled to make an additional capital contribution to CMG except in accordance with the terms of this subsection. The Board of Directors may from time to timetime by unanimous vote issue a capital call. In addition, a capital call shall be deemed to have been issued when (i) at any time CMG has insufficient assets to pay when due any claim for policy benefits made in the ordinary course of business or any expenditure called for by an annual Business Plan or approved by the Management Committee, and CMG has not been able to remedy the shortfall through short term borrowing, adjustments in the Business Plan or other appropriate means; or (ii) additional capital is required as a condition to the continued purchase of loans insured by CMG by the Federal Home Loan Mortgage Corporation (“Xxxxxxx Mac”), the Federal National Mortgage Association (“Xxxxxx Mae”), their successors, or any other entity that in the future is a substantial and significant purchaser of such loans comparable to Xxxxxxx Mac or Xxxxxx Mae. All capital calls shall be in the same proportion as the ownership of the stock in CMG. CMIC and PMI shall be obligated to make a capital contribution in response to any capital call under this subsection, and the contribution shall be made on or before the deadline set by the Board of Directors. In the event of a deemed capital call under subparagraph (i) in the preceding paragraph and in the absence of a different deadline established by the Board of Directors, the capital contribution shall be made within sixty (60) days after any member of the Management Committee gives notice to both parties, unless circumstances require an earlier payment. In the event of a deemed capital call under subparagraph (ii) in the preceding paragraph and in the absence of an earlier deadline established by the Board of Directors, the capital contribution shall be made in a timely manner so that continued purchase of loans insured by CMG is not adversely affected. Notwithstanding anything to the contrary in this Agreement, neither CMIC nor PMI shall be obligated to make additional capital contributions without its consent, if that contribution, when aggregated with all other contributions made on or after April 10, 2001, exceeds Thirty-Seven Million Six Hundred Fifty Thousand Dollars ($37,650,000), with respect to CMIC or Thirty-Seven Million Six Hundred Fifty Thousand Dollars ($37,650,000) with respect to PMI. CMIC and PMI may agree between themselves to lend funds to CMG instead of making additional capital contributions in response to a capital call, but in the absence of such an agreement, additional funds shall be advanced in the form of additional capital contributions. Neither party shall be allowed to make a capital contribution in an amount less than the full amount of the capital call, and partial capital contributions shall not be accepted by CMG. If either party fails to make a capital contribution in response to a capital call when due, the non-defaulting party shall be entitled to: (i) pay the capital contribution and receive an appropriate number of shares of stock in CMG; or (ii) if the parties had agreed to respond to the capital call by lending money to CMG, make the loan and receive the appropriate evidence of indebtedness. In addition, the non-defaulting party shall have the right for sixty (60) days after the default to exercise the put or call option that would be available to it under Section 5.4 in the event of a material default, and for this purpose the cure provisions of that Section shall not apply. The non-defaulting party may exercise this right in lieu of or in addition to making the defaulted capital contribution. The remedies granted the non-defaulting party under this paragraph are in lieu of any other remedies it may have under this Agreement or at law or equity. Any change in ownership as a result of the issuance of shares of stock in CMG to one party and not the other under this subsection shall not affect the terms of this Agreement relating to appointment of members to the Board of Directors or the Management Committee, unless and until either (i) the percentage owned by CMIC equals or exceeds 56%, or (ii) the percentage owned by PMI equals or exceeds 56%. At that time (i) the parties shall take all steps necessary to change the Articles and Bylaws of CMG to remove any provision that requires greater than a majority vote of the shareholders, the Board of Directors, the Management Committee, subject to approval by a Supermajority in Interest of or any other committee; and (ii) representation on the MembersBoard, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu and any successor or substitute committees with similar authority shall thereafter be proportionate to ownership of a Capital Contributionshares of common stock. Except for services as contemplated by an applicable Work PlanFor this purpose, no Member proportionate representation shall be required to make an additional Capital Contribution. However, except as contemplated calculated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) multiplying the number of Units outstanding immediately prior members of the subject group by a percentage equal to such additional Capital Contributionthe percentage owned by the party owning the highest percentage and rounding the result up to the nearest whole number. Immediately before issuing UnitsThe resulting number shall be the number of members of that group appointed by the party owning the highest percentage and the remainder of the members of that group shall be appointed by the other party. If any group has only two members, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units members shall be increased to three and the total number of Units then outstandingsame procedure followed.
Appears in 1 contract
Additional Capital Contributions. (a) From time No Member shall be required to timemake any additional Capital Contributions to the Company. Subject to Section 4.1, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Managers may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable at any time cause the Company to conduct its business seek additional Capital Contributions to the Company by issuing additional Membership Interests. Such additional Membership Interests shall have such attributes and shall be issued at such price and upon such terms as shall be so approved; PROVIDED, HOWEVER, that the admission of any new Members shall be subject to the other provisions of this Agreement. Without limiting the foregoing, such price and terms may differ in accordance any and all respects from the price and terms at which Membership Interests were issued or sold to the Members hereunder. The Managers shall do all things necessary to comply with the Work PlanAct in connection with the issuance of such additional Membership Interests. On making Subject to the exceptions set forth below, each Member shall have the preemptive right to purchase such a determinationadditional Membership Interests up to its Percentage Interest, all for the Management Committee same price and upon the same terms for such proposed issuance as shall be so approved. The Managers shall give written notice of such determination to all Members each Member at least thirty (30) days before prior to the date on which issuance of any additional Membership Interests. Each such Member who intends to purchase a portion of the additional Membership Interests shall, within twenty (20) days of receipt of such written notice from the Managers, deliver written notice of such intention to the Managers. The failure of such a Member to give such notice of his or its intention to purchase additional Membership Interests shall be deemed to be (i) a waiver of such Member's right to purchase additional Membership Interests, (ii) a consent to the admission of any purchaser as a Member and (iii) a consent to the amendment to this Agreement to provide for such additional Capital Contributions are neededMembership Interests. The closing of the purchase of such additional Membership Interests shall be held at such time and place as the Managers shall determine. If the Company does not issue any of such additional Membership Interests within 180 days following the twenty (20) day period after receipt of the notice referred to above at a price and on terms no less favorable to the Company than the price and terms as shall set forth the amount of additional Capital Contribution neededhave been so approved, the purpose for which it is needed, the date by which the Members Company may contribute not issue such additional amountsMembership Interests without first complying with this Section 6.2, and a reasonably detailed assessment as if such additional Membership Interests were first being proposed for issuance. The foregoing provisions of why alternative financing, notably unsecured or secured debt financing, is not, this Section 6.2 shall be inapplicable to the issuance of interests in the opinion of the Management Committee, appropriate Company in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, Strategic Transaction and no Member shall be required have a pre-emptive right to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make participate in such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingtransaction.
Appears in 1 contract
Additional Capital Contributions. (a) From time In the event the Company requires capital to timeacquire an Approved Property, the Management Committee, subject Manager shall be entitled to approval by a Supermajority require an additional capital contribution (an "ADDITIONAL CAPITAL CONTRIBUTION") from the Members in Interest an amount not in excess of the Members, may determine that Capital Contributions in addition amount necessary to the Initial Members’ prior Capital Contributions are needed to enable acquire such Approved Property plus all reasonable and customary costs and expenses incurred by the Company to conduct its business for Third Parties retained in accordance connection with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty Acquisition Activities; provided that (30x) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make contribute more than the amount determined by multiplying such Member's Percentage Interest by such Additional Capital Contribution and (y) no Member shall be required to contribute the amount described in clause (x) above if such amount, when added to the total of all of such Member's prior Capital Contributions, exceeds such Member's Capital Commitment. If the Manager shall provide to the Members a written notice calling for an additional Additional Capital Contribution (any such notice, a "CAPITAL CALL") setting forth the total amount of such Additional Capital Contribution. However, except the amount of each Member's share of such Additional Capital Contribution as contemplated by an applicable Work Plandetermined pursuant to clause (x) above, and the due date on which the Manager is requiring that such Additional Capital Contribution be contributed to the Company, which due date shall be at least ten (10) Business Days after the date on which the Members actually received the Capital Call and not more than one (1) Business Day prior to the scheduled closing of the acquisition of such Approved Property, each Member shall be given the opportunity to make contribute its share of such additional Additional Capital Contribution in proportion to immediately available funds on or before such Member’s Percentage Interestdue date. Upon payment If the acquisition of an additional Approved Property fails to close and the Manager determines there will not be a closing with fifteen (15) days of the date of the originally scheduled closing, the Manager (x) shall inform the Members of such failure and return each Member's share of the Additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to made with respect thereto and (y) each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) 's Capital Contribution shall be determined by dividing (i) restored to the Company Valuation by (ii) the number of Units outstanding level thereof immediately prior to such additional Additional Capital Contribution. Immediately before issuing UnitsIf, at any time after the Members have each contributed their entire Capital Commitment, the Gross Asset Members elect to contribute additional capital, the Fund shall 37 43 contribute two-thirds (2/3rds) and LXP shall contribute one-third (1/3rd) of such additional capital. A member may contribute to the Company an equity interest in any Approved Property and satisfy such Member's obligation to make an Additional Capital Contribution with respect thereto, provided that the Fair Market Value of such equity contribution determined at the Company’s assets will time of such Member's contribution thereof shall be adjusted equal to such Member's share of the Additional Capital Contribution required hereunder. If a Member decides to satisfy its obligations hereunder by contributing an equity share in a manner the Approved Property, (x) the other Member shall contribute to the Company its share of the Additional Capital Contribution relating to such Approved Property as provided under in this Section 5.1(b), which amount shall be applied to the definition purchase of Gross Asset Value in Appendix 1 attached heretosuch Approved Property, and Capital Accounts will reflect (y) the equity-contributing member shall convey fee title to such new Gross Asset Value. Following Approved Property at the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests scheduled closing of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingacquisition thereof.
Appears in 1 contract
Samples: Operating Agreement (Lexington Corporate Properties Trust)
Additional Capital Contributions. (a) From time to timeIn connection and simultaneously with the Construction Loan Closing, provided that the Company shall have obtained Final SDP Approval for the Project, the Management CommitteeMembers’ respective Percentage Interests shall be adjusted as set forth in Section 9.1 and in connection with such adjustment, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition CNL shall contribute to the Company such Additional Initial Members’ prior Capital Contributions are needed as necessary to pay any amounts payable by the Company at the Construction Loan Closing and to enable the Company (and the Company shall) return to conduct Woodfield such Initial Capital Contributions (in which event the Capital Contributions of CNL and Woodfield also shall be adjusted accordingly) as are necessary to cause the Initial Capital Contributions by the Members to be pro rata based on their respective Percentage Interests as adjusted pursuant to Section 9.1 upon the Construction Loan Closing. Additionally, when the Operating Member determines in its good faith business judgment that capital is needed by the Company to pay for (A) amounts necessary to reimburse Woodfield or Developer for its Pre-Development Costs, which Pre-Development Costs will be reimbursed at the Construction Loan Closing, (B) costs provided in accordance the Project Budget that have not been previously paid by the Members and that are not being paid for out of Company Financing or (C) costs of development or construction of the Project in excess of the Project Budget which costs have been approved by Member Consent (together with the Work Plan. On making such a determinationCapital Contributions made by CNL upon adjustment of Members’ respective Percentage Interests pursuant to Section 9.1, collectively, the Management Committee “Additional Initial Capital”), then the Operating Member shall give written cause notice to be delivered to the Members setting forth the purposes and amounts of such determination Additional Initial Capital. Each such notice delivered to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by shall constitute an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.“
Appears in 1 contract
Samples: Liability Company Agreement (CNL Growth Properties, Inc.)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no No Member shall be required to make an any further or additional Capital Contribution. Howevercapital contributions to the Company, except as contemplated required by an applicable Work Plan, the Act or this Agreement. A majority in interest of the Voting Members shall determine when and to what extent additional capital contributions from the Members to the Company are required from time to time. The Company shall give written notice to all Members of the requirement for additional capital contributions and the amount due from each Member shall be given the opportunity calculated by reference to make such additional Capital Contribution in proportion to such that Member’s Percentage Company Interest. Upon payment of an additional Capital Contribution In the event that a Member (a "Defaulting Member") fails to timely contribute the amount required pursuant to this Section 3.2(a(the "Default Amount"), the Company shall issue give Notice to the other Members who are Voting Members (the "Non-Defaulting Members") of the amount of the Default Amount. Within ten (10) days of the effective date of such Notice, each Non-Defaulting Member shall give Notice to the Company as to whether it elects to make an additional Units capital contribution equal to the Default Amount. In the event that one or more Non-Defaulting Members so elects to make such Capital Contribution, the Company shall give Notice to them of their respective shares of the Default Amount (determined as set forth below), and each contributing such Non-Defaulting Member shall contribute to the Company within three days of the effective date of such Notice from the Company a portion of the Default Amount determined by multiplying the Default Amount by a fraction the numerator of which is the Company Interest of the Non-Defaulting Member and the denominator of which is the sum of the Company Interests of all Non-Defaulting Members who elected to make the additional Capital Contribution. In the event that none of the Non-Defaulting Members notifies the Company that it wishes to make an additional capital contribution to cover the Default Amount, the Company may give notice of such event to all of the Non-Defaulting Members who shall then be obligated in accordance with the first paragraph of this Section to contribute their proportionate shares (based on their respective Company Interests) of the amount of the Default Amount. Following the contribution of the Default Amount by one or more of the Non-Defaulting Members, the Company Interest of each Member shall be re-determined and shall equal the fraction (expressed as a percentage) the numerator of which is the amount of the aggregate Capital Contributions made to the Company by such Member and the denominator is the aggregate of all Capital Contributions made to the Company by all Members. In the event that a Member’s Company Interest is increased pursuant to this paragraph, with each new Unit being issued for its fair market valuea proportionate share of the Capital Account of the Defaulting Members shall be transferred to such Member. The fair market value readjustment of an additional Unit issued Company Interests pursuant to this Section 3.2(a) shall be determined by dividing (i) the sole remedy of the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on against a Defaulting Member for the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingfailure to make Capital Contributions pursuant to this Section.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Miller Petroleum Inc)
Additional Capital Contributions. (a) From time to timeExcept as otherwise may be expressly provided herein, the Management CommitteeMembers shall not be required to make additional capital contributions. The Manager shall have the discretion to request, subject in writing, additional Capital Contributions from each Member in proportion to approval by a Supermajority their Membership Percentage (“Capital Call”) in Interest the event that the Company has insufficient funds to operate the Business of the MembersCompany or to make required payments on any debt of the Company; provided, may determine however, the timing and amount of a Capital Call must be reasonable. S ection 8.4 Failure to Pay Capital. Should any Member fail to pay the amount of any Capital Call requested by Manager pursuant to this Article 8 (the “Defaulting Member”), any other Member may, at his, her or its election, make the required payment on behalf of the Defaulting Member; provided however, that any Member who/which intends to make such a payment shall first provide written notice of that intention to all other Members (including the Defaulting Member); and the Defaulting Member shall have five (5) days to cure its failure to pay by making payment of the required Capital Contributions Call, plus interest on such amount from the date it was due until the date paid, at the Applicable Rate, in addition good and sufficient US funds. If the Defaulting Member has so affected its cure, no Member will have any further rights under this Section with respect to the Initial Members’ prior Capital Contributions are needed failure, which has been cured. Any Member which makes a payment to enable the Company on behalf of a Defaulting Member pursuant to conduct its business this Section 8.4 (a “Contributing Member”) shall treat the payment as an additional capital contribution to the capital of the Company for the Contributing Member’s own Capital Account, and in such case, the Contributing Member’s and Defaulting Member’s Ownership Percentage in the Company shall be adjusted in accordance with the Work Planformula set forth below. On making such If more than one Member elects to be a determinationContributing Member, then all contributing Members shall contribute on a pro rata basis determined by the Management Committee shall give written notice ratio of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are neededrespective Membership Interest of the Contributing Members. The notice shall set forth respective Ownership Percentage of each Contributing Member and the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Defaulting Member shall be required to make an additional adjusted and recalculated in accordance with the following formula: Contributing Member: [(Membership Percentage of Contributing Member multiplied by total invested Capital Contribution. However, except as contemplated of Company) plus (Amount of Additional Capital Contributed by an applicable Work Plan, each Contributing Member shall be given on behalf of himself/herself/itself and the opportunity to make such additional Defaulting Member)] divided by [(Total invested Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under ) plus (total Additional Capital Contributions contributed to the definition Company pursuant to Section 8.3)] D efaulting Member: [(Membership Percentage of Gross Asset Value in Appendix 1 attached hereto, and Defaulting Member multiplied by total invested Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held Company)] divided by each Member after the issuance [(Total invested Capital of the additional Units and Company) plus total Additional Capital Contributions contributed to the total number of Units then outstanding.Company pursuant to Section 8.3)]
Appears in 1 contract
Samples: Operating Agreement
Additional Capital Contributions. (a) From (i) The Management Committee will have the right from time to time, the Management Committee, subject time to approval by a Supermajority in Interest of the Members, may determine that make calls for optional additional Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed order to enable the Company to conduct purchase additional JCOM Shares pursuant to the exercise of its business in accordance with the Work PlanJCOM Preemptive Rights, if any (each, an "Additional Contribution") by giving Notice to each Member of any such optional capital call (an "Additional Contribution Notice"). On making such a determination, the Management Committee shall give written notice Each Additional Contribution Notice will specify each Member's Percentage Interest of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Additional Contribution needed, the purpose for which it is needed, and the date by which such Additional Contribution must be received by the Company if the Member desires to participate, which date will be a reasonable period of time prior to the date when the Company must exercise its JCOM Preemptive Rights. If the Management Committee makes a call for Additional Contributions, each Member will have the option to contribute all or any portion of its Percentage Interest of such Additional Contributions, which contributions will be in cash. Additional Units will be issued to the Members may contribute in respect of such additional amountsAdditional Contributions (including Additional Contributions made pursuant to 3.2(a)(ii)) on the basis of one Unit for each JCOM Share acquired with such Member's Additional Contributions; provided, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion that if application of the foregoing would require the issuance of fractional Units, the Additional Contributions to be made by each Member will be equitably adjusted as determined by the Management Committee, appropriate in lieu of a Capital ContributionCommittee so that no fractional Units will be issued. Except for services as contemplated by an applicable Work Plan, no No Member shall will be required to make an additional Capital Additional Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
Appears in 1 contract
Samples: Operating Agreement (Liberty Media International Inc)
Additional Capital Contributions. (a) From If from time to timetime the Company has insufficient cash to pay its normal operating expenses or other expenses set forth in a budget approved by the Board, each Member hereby agrees to make Additional Capital Contributions to the Company in order to fund budgeted items. If the Board is not able to establish a mutually acceptable budget for any given year, the Management Committeelast agreed upon budget shall continue as the Company's budget with adjustments for any cost of living increases since such last approved budget year, subject provided that a Member may in the event of an emergency make an Additional Capital Contribution in order to approval provide the Company with sufficient funds as required by a Supermajority in Interest such emergency. Such cost of living adjustment shall be determined using the U.S. Department of Labor Consumer Price Index (urban-all items) or its successor, with the base year being the actual year of the Members, may determine that last mutually approved budget year. Such Additional Capital Contributions in addition (including any emergency Additional Capital Contribution) shall be made directly to the Initial Members’ prior Capital Contributions are needed Company within thirty (30) days of receipt of a written request from either Member together with a statement of sources and uses, purposes and such other supporting information as reasonably deemed necessary by such Member. Each Member shall be obligated to contribute to the Company amounts in proportion to the Member's Percentage Interest as may be necessary to enable the Company to conduct meet its business in accordance with the Work Plannecessary and reasonable operating expense needs or budget obligations. On making such a determination, the Management Committee shall give written notice of such determination to Any and all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution capital contributions pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing collectively referred to as an "Additional Capital Contributions." In the event a Member fails to fund its share of any Additional Capital Contribution (including any emergency Additional Capital Contribution) within the time required and the other Member(s) elect to and actually fund such non-funding Member's share of any Additional Capital Contribution, then the funding Member shall be entitled to all rights and privileges granted herein with respect to the entire Excess Additional Capital Contribution (as defined below). Such funding Member shall be entitled to (i) a Cumulative Preferred Return which shall accrue from time to time on the Company Valuation entire excess of such Member's contribution over the amount contributed by the other Member(s) until such excess is fully recouped (any such excess contribution shall be referred to as an "Excess Additional Capital Contribution"), and (ii) the number of Units outstanding immediately prior to certain distribution priorities specified in Appendix C, Section C.8. until such additional funding Member has recouped such Member's entire Excess Additional Capital Contribution, including, without limitation, any advance for the non-funding Member, together with any Cumulative Preferred Return. Immediately before issuing Units, the Gross Asset Value Such right of the Company’s assets will other Member(s) to fund a non-funding Member's applicable share of any Additional Capital Contributions shall be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached heretoaddition to, and Capital Accounts will reflect not in lieu of, such new Gross Asset Value. Following Member's rights and remedies to enforce the issuance specific terms and obligations of additional Unitsthis Agreement against such non-funding Member, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingeither at law or in equity.
Appears in 1 contract
Samples: Emeritus Corp\wa\
Additional Capital Contributions. (a) From To the extent the Company has insufficient capital from operations, the Manager may call for Additional Capital Contributions by written Notification to the Members from time to timetime for any purpose permitted under this Agreement, the Management Committeeincluding, subject to approval by a Supermajority in Interest without limitation, operating deficits, Incentive Distributions (if and when payable under SECTION 3.9 of the MembersAgreement) and the acquisition, may determine that development or redevelopment of new Projects by the Company ("NEW PROJECTS") or for emergency needs. Subject to any limitations contained in this SECTION 3.2(a), such Additional Capital Contributions in addition to shall be contributed by the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business Members in accordance with the Work Plantheir respective Percentage Interests. On making such a determination, the Management Committee CalPERS shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall not be required to make an additional Additional Capital ContributionContributions in excess of the amount to be contributed by CalPERS under the approved Annual Investment Plan then in effect unless CalPERS shall increase such commitment in writing; provided, however, that CalPERS and Manager shall remain obligated to make Additional Capital Contributions to fund the following: (i) emergency needs; (ii) sums payable under previously executed construction agreements, architectural agreements and other documents relating to the development, redevelopment or construction of Projects; and (iii) amounts payable in connection with the acquisition of New Projects pursuant to a binding agreement or letter of intent (unless under the letter of intent the acquisition is not expected to close within 90 days) (collectively, "COMMITTED FUNDINGS"); provided, that the Manager shall use reasonable efforts to monitor items under (ii) and (iii) so as to minimize the possibility that CalPERS' Additional Capital Contributions will exceed the amount committed under the Annual Investment Plan. HoweverCalPERS hereby agrees to commit to the Company the amount of the Additional Capital Contributions to be contributed by CalPERS included in the Annual Investment Plan Approved by CalPERS, except a copy of the first of which is attached hereto as contemplated EXHIBIT G, along with the template for future Annual Investment Plans attached hereto as EXHIBIT G-1. The proceeds of any unsecured Financings or Financings secured by an applicable Work Planone or more of the Company's Projects shall also be available for recontribution (to the extent the proceeds have been previously distributed to the Members) for investment in New Projects. At all times during the Term, each Member shall be given obligated to fund its share of Additional Capital Contributions for Committed Fundings; provided, however, that subject to the opportunity foregoing, at any time upon Notification to the Manager, CalPERS may elect to reduce or eliminate its capital commitment to acquire New Projects, other than to fund Committed Fundings. In addition to cash, BPOP shall be permitted to make such additional Additional Capital Contribution Contributions in proportion the form of issuance of BPOP units to such Member’s Percentage Interest. Upon payment sellers of an additional Capital Contribution pursuant to this Section 3.2(a), New Projects that are acquired by the Company (or portions of such New Projects acquired by BPOP for BPOP units); provided that CalPERS shall issue additional Units have 10 business days to each contributing Member, with each new Unit being issued for its fair market value. The fair market value disapprove the amount to be credited to BPOP's Capital Account by reason of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Unitssuch BPOP units if CalPERS objects to the value of the BPOP units in such transaction within 10 business days after receipt of a copy of the purchase agreement. Unless CalPERS affirmatively objects to such valuation in writing within such 10-day period or the parties otherwise agree on an alternative valuation, for purposes of crediting BPOP's Capital Account the BPOP units shall be valued in the amount of such BPOP units set forth in the applicable purchase agreement. With CalPERS' Consent, BPOP may contribute Additional Capital Contributions in the form of contributions of Manager's Projects or other properties acquired or to be acquired by BPOP. With respect to each such proposed contribution, the Net Asset Value (and the value of BPOP's contribution) of each such Manager's Projects or other property shall be established by reference to an appraisal performed by an MAI appraiser selected by CalPERS or such other amount as the parties may otherwise agree. CalPERS may determine whether the valuation in such appraisal is supported by the opinion of an independent fiduciary retained by CalPERS. With respect to those Manager's Projects or other properties BPOP proposes to contribute, BPOP shall pay for the cost of the appraisal (or reimburse CalPERS for the cost of same). CalPERS shall pay the cost of the fiduciary's opinion, if necessaryany. Within 10 business days of receipt of all relevant information concerning the proposed contribution of property, CalPERS shall approve or disapprove the Management Committee shall re-compute proposed contribution in its sole discretion. If so approved by CalPERS, Additional Capital Contributions made in the Percentage Interests form of Manager's Projects or other properties are not required to be made concurrently with Additional Capital Contributions made by CalPERS in the Members based on the total number form of Units held by each Member after the issuance cash so long as such BPOP Additional Capital Contributions are made within 60 days of the additional Units and the total number of Units then outstandingCalPERS' Additional Capital Contributions.
Appears in 1 contract
Samples: Operating Agreement (Burnham Pacific Properties Inc)
Additional Capital Contributions. Once all Conditions Precedent (aas defined in the Glossary) From time required to time, begin construction are satisfied and the Management Committee, subject to approval Company has obtained financing approved by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) TrizecHahn shall contribute, as and when required by the Company Valuation Bazaar Company, the TrizecHahn Investment, less a credit for predevelopment expenditures incurred by TrizecHahn and approved by the Company, and (ii) the number Company and Holdings shall execute the Lease in form approved by the Board, and Holdings II's Capital Account and Unrecovered Contribution Account shall be credited with the amount of Units outstanding immediately prior Ten Million Dollars ($10,000,000) reflecting the arrangement by Holdings II for the Company to such additional Capital Contributionobtain the Lease of the Property with below market rate ground rent. Immediately before issuing UnitsThe contribution of the TrizecHahn Investment shall be guaranteed by TrizecHahn Centers Inc., in the form attached hereto as EXHIBIT "G." In structuring the economics of this transaction, TrizecHahn has assumed that the Company will be able to obtain mortgage indebtedness, at market rates and on market terms based upon market terms and conditions typically obtained by TrizecHahn, for the balance of the construction costs. If the mortgage indebtedness together with the original capital contributions is not sufficient to pay all construction costs, the Gross Asset Value Company will first attempt to obtain additional indebtedness if available at reasonable market rates and market terms as mutually determined by TrizecHahn and Holdings II before requiring additional capital contributions. To the extent additional capital ("ADDITIONAL CAPITAL") is required, Holdings II and TrizecHahn shall each contribute such capital in the ratio of their Percentage Interests pursuant to Section 3.04. Holdings II and TrizecHahn may elect to bring in a third-party investor as an additional Member of the Company’s assets , subject to the sole discretion approval of the other Member, to contribute their Additional Capital. If such third-party investor is admitted as a member, the non-contributing party or parties shall bear a dilution of its or their Percentage Interest. Additionally, the two seats each on the Board may be divided between the non-contributing party and its third-party investor, or if an additional seat is added for the third-party investor, an additional seat will be adjusted in a manner provided under added for the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingcontributing party.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Aladdin Gaming Holding LLC)
Additional Capital Contributions. (a) From time to timeHolders of Class A Units (in their capacity as holders of Class A Units, the Management Committee, subject to approval by a Supermajority in Interest of the “Eligible Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30”) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital ContributionContributions to the Company in such amounts and at such times as the Board shall specify in written notices (“Additional Capital Contribution Notices”) sent by the Company from time to time to such Eligible Members (such Capital Contributions, “Additional Capital Contributions”) for any use that the Board deems appropriate. HoweverAdditional Capital Contribution Notices will be sent to Eligible Members not less than ten (10) Business Days prior to the date on which an Additional Capital Contribution is due (the “Additional Capital Contribution Date”). All Additional Capital Contributions shall be paid in United States dollars to the Company in immediately available funds by no later than 3:00 p.m. (New York City time) on the Additional Capital Contribution Date. The Board may amend, except as contemplated by delay or rescind any Additional Capital Contribution Notice at any time prior to the Additional Capital Contribution Date. (b) Each Additional Capital Contribution Notice delivered to an applicable Work Plan, each Eligible Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing specify (i) the Company Valuation by aggregate amount of Additional Capital Contributions subject to such Additional Capital Contribution Notice (the “Aggregate Capital Contribution Amount”), the Additional Capital Contribution Date, the aggregate number of Class A Units or other Interests to be issued and sold in connection with such Additional Capital Contributions and the Price Per Unit for each such Class A Unit or other Interest to be issued and (ii) such Eligible Member’s required Additional Capital Contribution, based on such Eligible Member’s pro rata share (based upon the number of Class A Units outstanding immediately prior held by such Eligible Member to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value aggregate number of Class A Units held by all Eligible Members) of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached heretoAggregate Capital Contribution Amount, and the number of Class A Units to be issued to and purchased by such Eligible Member on the Additional Capital Accounts will reflect Contribution Date (calculated by dividing such new Gross Asset ValueEligible Member’s Additional Capital Contribution by the Price Per Unit). Following (c) If any Eligible Member (a “Non-Contributing Member”) fails to contribute all or any portion of such Eligible Member’s Additional Capital Contribution (such amount that is not so contributed by a Non-Contributing Member being the issuance “Delinquent Contribution”), then each Eligible Member that has contributed its full Additional Capital Contribution (for purposes of additional Unitsthis Section 11.3(c), if necessary, the Management Committee an “Other Member”) shall re-compute the Percentage Interests be entitled (but is not required) to contribute its pro rata portion of the Members Delinquent Contribution (based on the total number of Class A Units held by each of such Other Member to the aggregate number of Class A Units of all Other Members). Each Other Member that elects to contribute a portion of a Delinquent Contribution must elect to contribute its entire pro rata share of the Delinquent Contribution and shall deliver a written notice to the Company within ten (10) days after the issuance Additional Capital Contribution Date to such effect. If any Other Member does not elect to contribute its entire pro rata share of the additional Units and Delinquent Contribution by the total number expiration of Units then outstanding.such 10-day period, any Other Member that has elected to contribute its entire pro rata share of the Delinquent Contribution may elect to contribute its entire pro rata share of the remaining portion of the Delinquent confidential confidential
Appears in 1 contract
Additional Capital Contributions. (a) From time Each Member shall make its proportionate share, based on its respective Ownership Percentage (except that each party's obligation with respect to timeclause (iii) below shall be based solely upon the allocation set forth in the Capital Contribution Agreement), the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that such Additional Capital Contributions in addition (i) as the Board of Directors shall determine to be necessary, including, without limitation, amounts necessary (to the Initial Members’ prior Capital Contributions are needed to enable extent the Company does not otherwise have funds available therefor) for the Company to conduct pay (1) its annual fees in each jurisdiction in which it is qualified to do business and (2) any corporate maintenance or registered agent fees to any nationally recognized corporate service company or other Person, for each jurisdiction in which the Company is qualified to do business (other than with respect to Additional Capital Contributions required pursuant to clause (ii) below), (ii) as required to meet the Company's obligations under the Equity Contribution Agreement, or (iii) as required to meet its obligations under Section 2.1(b) and (c) and Section 2.4 of the Capital Contribution Agreement. The Board of Directors, in the case of Additional Capital Contributions pursuant to clause (i) hereof, shall give the Members reasonable prior notice of the amount of the Additional Capital Contribution and the Capital Call Date. The notice provisions of the Equity Contribution Agreement shall govern the timing of Additional Capital Contributions pursuant to clause (ii) above. The provisions of the Capital Contribution Agreement shall govern the timing of the Additional Capital Contributions pursuant to clause (iii) above. When determining the number of days of prior notice for Additional Capital Contributions made pursuant to clause (i) above, the Board of Directors may consider the needs of the Company for the contribution, and in no event shall such prior notice need to be longer than 30 days. Each Member shall be deemed to have satisfied its obligation under clause (ii) above upon its delivery to the Company (or its designee or the Issuer) of (1) a Backup Letter of Credit, or the Backup Guarantees, as the case may be, in accordance with the Work Planterms of Section 5.7(a), so long as such Backup Letter of Credit, or the Backup Guarantees, as the case may be, has not expired, been terminated or otherwise ceased to satisfy the requirements of Section 5.7(a), or (2) cash collateral in the amount required by Section 5.7(a). On making Upon the draw of any such a determinationBackup Letter of Credit or the payment under any such Backup Guarantee or the application of any such cash collateral to the Company's reimbursement obligations in respect of the letter of credit delivered by the Company in support of the Company's obligations under the Equity Contribution Agreement, the Management Committee Member that delivered such Backup Letter of Credit, such Backup Guarantee or cash collateral shall give written notice of such determination be deemed to all Members at least thirty (30) days before the date on which such additional have made an Additional Capital Contributions are needed. The notice shall set forth Contribution in the amount of additional such draw, payment or cash collateral, as the case may be, and, in return for such Additional Capital Contribution neededContribution, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be receive a Preferred Interest as further set forth in this Section 5.2. If a Member does not make any required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Additional Capital Contribution pursuant to this Section 3.2(a5.2(a), then such Non-Contributing Member hereby consents to the Company application to it of the remedies provided in Section 5.2(c) or 8.3, and further agrees that the availability or exercise, or both, of such remedies shall issue additional Units not preclude, limit, or restrict any other remedies that may be available at law, in equity, by statute, or otherwise in respect of any failure by such Non-Contributing Member to each contributing Member, with each new Unit being issued for its fair market valuemake any such Additional Capital Contribution. The fair market value of an additional Unit issued Additional Capital Contributions made pursuant to this Section 3.2(a5.2(a)(i) or (ii) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted made for Preferred Interests as further set forth in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingthis Section 5.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (MSW Energy Hudson LLC)
Additional Capital Contributions. (a) From The Members may from time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall time be required to make additional capital contributions to the Company (each, an additional “Additional Capital Contribution. However”) at such time and in such amounts as determined by the Board, except as contemplated by in the event that (x) the Board has approved such Additional Capital Contribution, (y) the Board determines that an applicable Work Plan, each Member shall be given the opportunity to make such additional Additional Capital Contribution is required in proportion order for the Company to maintain its status as a derivatives clearing organization or to satisfy any other regulatory obligation and the Company, after using commercially reasonable efforts, shall have failed to cause such Member’s Percentage Interest. Upon payment of Governmental Authority to waive, amend or rescind such regulatory obligation or (z) the Board determines that an additional Additional Capital Contribution pursuant is required in order to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of ensure an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value orderly winding down of the Company’s clearing operations in the event of a closure of such operations; provided, that such Additional Capital Contributions shall be made pro rata in proportion to the Members’ respective Percentage Interests. All Additional Capital Contributions shall be (i) in cash, or (ii) if approved by the Board, in other assets or properties at the fair market value therefor as determined in the Board’s good faith discretion. If any Member fails in whole or in part to comply with such a request by the Board, the other Founding Member may contribute the portion of Additional Capital Contribution not otherwise contributed by such Member, as the case may be, and such contribution will be adjusted in considered a manner provided under loan by the definition contributing Member to the non-contributing Member, which loan shall be evidenced by a full recourse promissory note of Gross Asset Value in Appendix 1 attached heretothe non-contributing Member, which shall bear interest at an annual rate of LIBOR plus 10% and Capital Accounts will reflect such new Gross Asset Value. Following shall be secured by the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each non- contributing Member after the issuance of the additional Units (including all proceeds therefrom), and the total number non-contributing Member shall assign to the contributing Member all dividends, distributions and other proceeds that would have otherwise been paid to it in respect of Units then outstandingsuch Interests until such note and interest thereon is repaid in full.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Additional Capital Contributions. In addition to the Initial Capital Contributions, each Member agrees to make additional Capital Contributions to the Company from time to time in accordance with its Percentage Interest (a“Additional Capital Contributions”) From to fund as determined by Encore, from time to time, in its sole discretion: (i) the Management CommitteeCompany Required Equity Investment of a Project as set forth in the respective Project Budget, (ii) Emergency Expenditures, (iii) costs and expenses specifically designated as requiring Company equity contributions as set forth in the approved Company Budget, provided that with respect to the Project for which such Additional Capital Contribution is requested there is no material deviation from project schedule as set forth in the approved Project Budget and Project Business Plan, subject to approval by a Supermajority Force Majeure, (iv) costs and expenses specifically requiring Company equity funding as set forth in Interest of the Membersan approved Project Budget, may determine provided that Capital Contributions in addition with respect to the Initial Members’ prior Project for which such Additional Capital Contribution is requested there is no material deviations from the project schedule as set forth in the approved Project Budget and Project Business Plan, subject to Force Majeure, and (v) other costs and expenses approved by Encore; provided, however, that if such Additional Capital Contributions are needed insufficient Manager shall not be deemed to enable have breached its obligations hereunder. The Manager will give Notice to the Members of a proposed Additional Capital Contribution to be made by each Member, (x) stating the aggregate amount of such Additional Capital Contribution, (y) stating in reasonable detail the reasons such Additional Capital Contributions are required, the intended use thereof and such other information as any Member may reasonably request and the date on which the Members will be obligated to contribute to the Company to conduct its business in accordance with the Work Plan. On making amount of such a determinationAdditional Capital Contribution (which date, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before “Tender Date”, will not be less than 15 Business Days after the date on which such additional Notice is given, except with respect to Emergency Expenditures which Tender Date shall be as far in advance as reasonably practicable, which may be less than 15 Business Days). Manager will (not less than 5 Business Days prior to the Tender Date) provide a Notice so stating to each Member will be obligated to contribute to the Company on the Tender Date, in cash, the aggregate amount of Additional Capital Contributions are neededto be made on the Tender Date, in proportion to their respective Percentage Interests. If any Member fails to pay to the Company by 5:00 p.m. Eastern Time on the Tender Date its entire share of any Additional Capital Contribution required pursuant to this Section 3.2 (such Member, the “Non-Contributing Member”), then the portion thereof not contributed by such Non-Contributing Member shall be hereinafter referred to as the “Deficiency”. Any other Member who wishes to make payment to the Company all or any portion of such Deficiency shall be deemed a “Contributing Member.” The Contributing Member may, in its sole and absolute discretion, elect by notice shall set forth to the amount Non-Contributing Member to make a Member Loan to the Non-Contributing Member. No Member will be entitled or required to make any Capital Contributions to the Company other than under Section 3.1 or as required by this Section 3.2. A Contributing Member may, in its sole discretion, elect to advance any Deficiency in the form of a Member Loan pursuant to Section 3.2 or deem such amounts an additional Capital Contribution needed, the purpose by Contributing Members for which it is needed, the date by entitled to Additional LP Return in accordance with Section 3.7(a) which the Members may contribute such additional amounts, and a reasonably detailed assessment Additional LP Returns would in each case be paid to Encore out of why alternative financing, notably unsecured future distributions or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a fees otherwise payable to Non-Contributing Members. Failure to Make Additional Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingContributions.
Appears in 1 contract
Samples: CaliberCos Inc.
Additional Capital Contributions. If the Board receives from any Construction Manager, Service Provider or Operator a Request for Advance for amounts that would result in aggregate spend in excess of the Construction Cost Threshold or the Operating Cost Threshold, as applicable, and determines by Majority Consent of the Board that the Company requires Capital Contributions from the Members to fund such amounts in excess of the Construction Cost Threshold or the Operating Cost Threshold, as applicable (an “Additional Capital Contribution”), the Board shall provide a Capital Call Notice to all Members in accordance with Section 7.4. Any Member whose appointed Manager votes to approve (or consents in writing to approve) such Additional Capital Contribution shall be referred to as a “Consenting Member.” On or prior to the payment date set forth in the Capital Call Notice, each Consenting Member shall be obligated to, and each non-Consenting Member may, fund its Percentage Interest of the Additional Capital Contribution in accordance with Section 7.2(c), and such Additional Capital Contribution shall be deemed a Required Contribution for each Consenting Member; provided, however, that if a non-Consenting Member elects not to fund its Percentage Interest of an Additional Capital Contribution, the Consenting Members shall be obligated to fund the amount of such Additional Capital Contribution that the non-Consenting Member failed to fund, such pro rata share calculated based on each Consenting Member’s Percentage Interest relative to the aggregate Percentage Interests of all Consenting Members or in such other proportion as the Consenting Members agree. Any Member who is not a Consenting Member shall have no obligation to make an Additional Capital Contribution and shall not be in Default or suffer any consequence as a result of (a) From time the Manager appointed by such Member failing to timeapprove such Additional Capital Contribution or (b) failing to fund such Additional Capital Contribution, except that, upon the funding of an Additional Capital Contribution, the Management Committee, subject to approval by a Supermajority in Interest Percentage Interests of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given recalculated to reflect the opportunity to make such additional Capital Contribution amount described in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingInterest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Delek US Holdings, Inc.)
Additional Capital Contributions. (a) From time If the Partnership requires capital to timeacquire an Approved Qualified Property, the Management Committee, subject Managing General Partner shall be entitled to approval by a Supermajority require an additional Capital Contribution (an “Additional Capital Contribution”) from the Partners in Interest an amount not in excess of the Membersamount necessary to acquire such Approved Qualified Property plus the Acquisition Fee, may determine that Capital Contributions the Financing Fee (unless such Financing Fee is paid from the proceeds of the applicable financing), all other fees, costs and expenses incurred in addition connection with obtaining financing for the Approved Qualified Property (but only to the Initial Members’ extent that such other fees, costs and expenses are not funded from proceeds of such financing), all of Federal’s in-house legal fees incurred in connection with such acquisition and any related financing (but only to the extent that such fees are payable by the Partnership pursuant to Section 3.10(c)(iv) above), and all reasonable and customary fees, costs and expenses incurred by the Partnership for Third Parties retained in connection with or attributable to the Acquisition Activities; provided that (i) each Partner shall be required to contribute as an Additional Capital Contribution the amount determined by multiplying such Partner’s Percentage Interest by the amounts described in this sentence immediately above and (ii) no Partner shall be required to contribute the amount described in clause (i) above if such amount, when added to the total of all of such Partner’s prior Capital Contributions are needed (excluding all Default Contributions), exceeds such Partner’s Capital Commitment. If the Managing General Partner shall provide to enable the Company to conduct its business in accordance with Partners a written notice calling for Additional Capital Contributions (any such notice, a “Capital Call”) setting forth the Work Plan. On making such a determinationtotal amount of capital required, the Management Committee amount that each Partner is required to contribute as such Partner’s Additional Capital Contribution (as determined pursuant to clause (i) above), and the due date on which the Managing General Partner is requiring that such Additional Capital Contributions be contributed to the Partnership, which due date shall give written notice of such determination to all Members be at least thirty ten (3010) days before Business Days after the date on which the Partners actually received the Capital Call and not more than one (1) Business Day prior to the scheduled closing of the acquisition of such additional Approved Qualified Property; each Partner shall contribute such Partner’s Additional Capital Contribution in immediately available funds on or before such due date. If the acquisition of an Approved Qualified Property fails to close and the Managing General Partner determines that there will not be a closing within fifteen (15) days of the date of the originally scheduled closing, (x) the Managing General Partner shall inform the Partners of such failure and return each Partner’s Additional Capital Contribution made with respect thereto and (y) each Partner’s Capital Contribution and Capital Contributions are neededAccount balances shall be restored to the levels thereof immediately prior to the making of such Additional Capital Contributions. The notice shall set forth If, at any time after the amount of additional Partners have each made aggregate Capital Contribution neededContributions (excluding Default Contributions) that equal or exceed their Capital Commitment, the purpose for which it is neededPartners elect to contribute additional capital, the date by which the Members may Partners shall contribute such additional amountscapital in accordance with their respective Percentage Interests. A Partner may contribute to the Partnership an Approved Qualified Property, or an equity interest therein, pursuant to a Contribution Agreement and a reasonably detailed assessment of why alternative financing, notably unsecured receive Initial Capital Contribution or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Additional Capital Contribution. Except , as the case may be, credit for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingcontribution.
Appears in 1 contract
Samples: Contribution Agreement (Federal Realty Investment Trust)
Additional Capital Contributions. (a) From time to time, If the Management Committee, subject to approval by Board and a Supermajority Majority in Interest of the MembersClass A agree, in each instance in the sole absolute discretion of each applicable Person, then the holders of Class A Units may determine that make, but shall not be obligated to make an additional Capital Contributions in addition Contribution to the Initial Members’ Company in an aggregate amount to be agreed upon by the Board and the Majority in Interest of the Class A; provided, however, if Company and the operating subsidiaries have incurred material operating losses not provided for in the Business Plan and Budget at or prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which time any such additional Capital Contributions are needed. The notice shall set forth the amount sought, approval of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage InterestContributions shall also require the approval of each of the Class A Directors. Upon payment of an such additional Capital Contribution pursuant to this Section 3.2(a)Contribution, the Company shall issue additional Class A Units to each contributing MemberPerson, with each new Class A Unit being issued for its fair market value. The fair market value of an additional Class A Unit issued pursuant to this Section 3.2(a) paragraph shall be determined by dividing (i) the Company Valuation Company's fair market value immediately prior to such additional capital contribution by (ii) the number of Units units outstanding immediately prior to such additional Capital Contributionissuance. The Company's fair market value shall be reasonably determined by the Board. Immediately before issuing Class A Units, the Gross Asset Value of the Company’s 's assets will be adjusted in a manner provided under subsection (b) of the definition of Gross Asset Value in Appendix 1 attached heretoA hereof, and each Member's and Unit Holder's Capital Accounts Account will reflect such new adjusted Gross Asset ValueValue as required under Regulations Section1.704-1(b)(iv). Following Each Class A Unit Holder's Contribution Account shall also be adjusted. (b) If the holders of a Majority in Interest of Class A do not approve any requested additional Capital Contribution, and a Majority of the Board, together with the concurrence of each Class A Director, determines that an additional Capital Contributions are needed to enable the Company to conduct its business, in such event the Board may authorize issuance of additional Units, if necessary, and the Management Committee shall re-compute Board will determine the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of rights to be granted the additional Units and will give notice to the total Members in writing at least 30 days before the date on which the Members may make such additional capital contributions. Without the approval of a Majority in Interest of the Class A Members, no such issuance shall affect the rights of the Class A Members as to distribution priorities. The notice shall set for the amount of additional Capital Contributions needed, the purpose for which such contributions are needed, and the date by which the Members may contribute such additional amounts. No Member shall be required to make any such additional Capital Contribution. Upon payment of the additional Capital Contribution, the Company shall issue additional non-Class A or B Units to each contributing member, each new Unit issued for its fair market value. The fair market value of such non-Class A or B Units issued pursuant to this paragraph shall be determined by dividing the company's fair market value immediately prior to such additional Capital Contribution by the number of non-Class A or B Units then outstanding.outstanding immediately prior to such issuance. The Company's fair market value shall be reasonably determined by the Board after consulting with either an independent appraiser reasonably selected by the Board or the Company's accountants or financial advisors, if any. In addition, immediately before issuing such additional Units, the Gross Asset Value of the Company's assets will be adjusted in the manner provided under subsection (b) of the definition of Gross Asset Value in Appendix A hereof, and each Member's and Unit Holder's Capital Account will reflect such adjusted Gross Asset Value as required under Regulations Section1.704-1(b)(iv). 3.3
Appears in 1 contract
Additional Capital Contributions. (a) From time The Company will fund all future capital requirements, relating to timeit and its Subsidiaries (including, without limitation, any required capital expenditures, leasing costs, debt service or operating shortfalls) from available cash flow or any reserves it will create for such purpose. In the event that the Company or its Subsidiaries require additional capital (after having exhausted the funds available to it during the relevant period) to pay debt service owing pursuant to, or otherwise cure or avoid a default under, any of the Loan Documents or to cover real estate taxes, any other operating expenses, or to make any capital expenditures (including, without limitation, to fund the costs of any environmental remediation) or other disbursements to third parties that the Managing Member determines in good faith are necessary to preserve the Property's competitive position or value or to protect it from waste, the Management Committee, subject to approval by a Supermajority in Interest Managing Member may notify the Maguire Members of the Membersadditional amount of capital required by the Xxxxxxx (the "Additional Capital Required"), may determine that Capital Contributions in addition and, within 20 Business Days of such notice, the Maguire Members may, at their sole discretion, make an additional Caxxxxx Xontribution to the Initial Members’ prior Company (a "Maguire Member Additional Capital Contributions are needed Contribution") or notify the Managxxx Xxxber of their decision not to enable do so. A Maguire Member's failure to notify the Managing Member of its decisixx xx xake a Maguire Member Additional Capital Contribution within such 10 Businexx Xxx period shall be deemed to be a notification that such Maguire Member(s) has decided not to make any such Additional Capitax Xxxxxibution. Any amounts so contributed to the Company pursuant to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Maguire Member Additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required added to the xxxxxxnt Maguire Member's Capital Account. In the event the Maguire Members fxxx xx make the Maguire Member Additional Capital Cxxxxxxxtions in an amount equal tx xxx Xdditional Capital Required within such 20 Business Days' period, RECP may, at its sole discretion, make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given Contribution (the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional "RECP Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value ") in an amount equal to any portion of the Company’s assets will be adjusted in a manner provided under Additional Capital Required not contributed by the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingMaguire Members.
Appears in 1 contract
Additional Capital Contributions. (a) From time The Members agree that the Company shall only use Capital Contributions to fund its share of any Development Costs under the Joint Development Agreement and not any of the Company’s revenues or receipts. So long as the Joint Development Agreement is in effect, each Member agrees to make, as Capital Contributions, those amounts required to be paid by such Member and/or such Member’s Percentage Interest share of amounts required to be paid by the Company to the Joint Operations Account pursuant to the terms of the Joint Development Agreement. In addition, to the extent that, at any time, the Management Committee, subject Company’s gross receipts are not anticipated to approval by a Supermajority be sufficient to satisfy the estimated expenditures to be incurred in Interest the succeeding Calendar Quarter (i) for expenditures outside of the Membersapproved Annual Work Program and Budget that are approved by the Management Board or (ii) upon the termination of the Joint Development Agreement, may determine that Capital Contributions in addition pursuant to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the an approved Annual Work Plan. On making such a determinationProgram and Budget, the Management Committee President and General Manager shall give written notice issue a Call Notice to each Member for an additional Capital Contribution in an amount equal to such Member’s Percentage Interest share of the difference between such determination to all Members at least estimated expenditures and anticipated gross receipts not more than thirty (30) days before but not less than fifteen (15) days prior to the date on which commencement of such Calendar Quarter. Further, the President and General Manager may issue Call Notices to the Members at any other time for their respective Percentage Interest share of other additional Capital Contributions are needed. The notice shall set forth to the amount of extent that the Company’s anticipated gross receipts and other additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution Contributions made pursuant to this Section 3.2(a)5.3(a) are not anticipated to be sufficient to satisfy the Company’s estimated expenditures to be incurred during the current Calendar Quarter in accordance with this Agreement, the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit provided that Call Notices may not be issued pursuant to this Section 3.2(a5.3(a) for any estimated expenditures more than thirty (30) days in advance of such estimated expenditures. Proper adjustment shall be determined by dividing (imade in each Calendar Month between advances made hereunder and actual expenditures, to the end that each Member bears and pays its Percentage Interest share of expenditures, and no more. All calls for Capital Contributions shall be expressed in U.S. dollars and shall state the date on which payment is due and the bank(s) and account(s) to which payment is to be made. Each Call Notice shall specify in reasonable detail the Company Valuation by (iipurpose(s) the number of Units outstanding immediately prior to for which such additional Capital Contribution. Immediately before issuing UnitsContribution(s) are required, and the Gross Asset Value amount of the Company’s assets will Capital Contribution(s) to be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held made by each Member after the issuance pursuant to such Call Notice. Each Member shall contribute any additional Capital Contribution within fifteen (15) Business Days of the date of delivery of the relevant Call Notice. If the approval of a call for additional Units and Capital Contributions specifies the total number purpose for which those Capital Contributions are called, the Company shall use the proceeds of Units then outstandingsuch additional Capital Contributions exclusively for the purpose specified in such approval.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Exco Resources Inc)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member Each Partner shall be required to make an additional capital contribution to the Partnership from time to time in an amount sufficient to increase and/or maintain such Partner’s Capital Account (a) in the case of CDFJV, to an amount equal to CDFJV’s then current DocID: 0000-0000-0000.12 Execution Version Partnership Interest multiplied by the Required Equity Percentage of Base Capital, and (b) in the case of PAI, to an amount equal to PAI’s then current Partnership Interest multiplied by the Required Equity Percentage of Base Capital; the above amounts to be based on Base Capital determined each month as of the end of such month (in each case, an “Additional Capital Contribution”). However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Such Additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) Contributions shall be determined and made (x) as of the end of each month during the term of the Partnership, or (y) if Approved by dividing the Management Committee, more often, which Additional Capital Contributions shall be made within five Business Days of receiving notice from the Partnership of any such increase. Each Partner shall also be required to make Additional Capital Contributions to the Partnership in an amount such that the aggregate capital contributions contributed by each Partner with respect to Securitized Receivables repurchased by the Partnership shall equal the product of (i) the Company Valuation amount of its respective then current Partnership Interest multiplied by (ii) the number Required Equity Percentage of Units outstanding the aggregate amount required to fund such repurchase of Securitized Receivables, which Additional Capital Contributions shall be made within five Business Days of receiving notice from the Partnership of the proposed repurchase of such Receivables. All Additional Capital Contributions shall be made in cash by wire transfer of immediately prior available funds to Polaris Acceptance’s cash depository account or to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value other account of the Company’s assets will Polaris Acceptance as shall be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, Approved by the Management Committee from time to time. The Partners hereby agree that the Partners or the Management Committee, may quarterly, or more frequently as the Partners or the Management Committee may determine, modify the Required Equity Percentage to such percentage as the Partners or the Management Committee, if such agreement is Approved by the Management Committee, agree is necessary to reflect an appropriate level of equity; provided, however, that following the occurrence of a Withdrawal Date, the level of Required Equity Percentage shall re-compute be reviewed by the Percentage Interests Management Committee at least monthly and the Partners or the Management Committee, if such agreement is Approved by the Management Committee, may, on a monthly basis following the occurrence of a Withdrawal Date, agree to adjust the level of the Members based on Required Equity Percentage. The requirement of each Partner to maintain sufficient funds in its Capital Account shall continue through the total number of Units held by each Member after the issuance liquidation and/or wind-down and dissolution of the additional Units and the total number of Units then outstandingPartnership as specified in Article VIII hereof.
Appears in 1 contract
Samples: Partnership Agreement (Polaris Inc.)
Additional Capital Contributions. In the event that the Managers determine that additional capital is necessary or desirable to fund the Company’s business, including without limitation to fund the operations of Arizona Subsidiary or any other entity in which the Company may hereafter own an interest (a) From time to timeArizona Subsidiary and such other entities, the Management Committee“Company Subsidiaries”) (“Additional Capital”), subject then each Member shall contribute to approval by the Company a Supermajority in Interest pro rata portion of the Members, may determine that Additional Capital Contributions in addition to the Initial Membersbased on such Member’s then-current Percentage Interest. The Managers shall provide each Member with at least 30 days’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination any request for Additional Capital (the “Notice Period”). If any Member (the “Non-Contributing Member”) fails to all Members at least thirty (30) days before contribute the date on which such additional Capital Contributions are needed. The notice shall set forth the full amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion its pro rata portion of the Management CommitteeAdditional Capital prior to the end of the Notice Period, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing then (i) the Company Valuation by other Members shall have the right (but not the obligation) to contribute all or part of the Additional Capital the Non-Contributing Member was required, but failed, to contribute; and (ii) additional Units shall be issued by the number of Units outstanding immediately prior Company to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of contributing Members in numbers sufficient for the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the respective Percentage Interests of the Members based on immediately following such contributions and issuance of additional Units to be modified such that each Member’s Percentage Interest shall be the total number equivalent of Units held a fraction (A) having as its numerator the aggregate capital contributions of such Member, including without limitation the portion of the Additional Capital contributed by each such Member (including any portion of the Additional Capital contributed because a Non-Contributing Member failed to contribute its pro rata portion of Additional Capital), and (B) having as its denominator the aggregate capital contributions of all of the Members, including the Additional Capital contributed. Notwithstanding the foregoing, in the event that (a) Additional Capital is required to be contributed by the Members pursuant to this Section 10(c) after the admission of Members other than the Initial Members, and (b) any Member fails to contribute the full amount of its pro rata portion of the Additional Capital, then additional Units shall be issued by the Company to the contributing Members in numbers sufficient for the respective Percentage Interests of the Members immediately following such contributions and issuance of the additional Units to be modified such that each Member’s Percentage Interest shall be the equivalent of a fraction (i) having as its numerator (A) the Fair Value (as defined in Section 30) of the Company as of the date of the Company’s notice of request for Additional Capital multiplied by the Percentage Interest of such Member as of such date plus (B) the amount of any Additional Capital contributed by such Member, and having as its denominator (ii) the sum of the Additional Capital contributed by all of the Members and the total number Fair Value of Units then outstandingthe Company as of the date of the Company’s notice of demand for Additional Capital.
Appears in 1 contract
Samples: Limited Liability Company Agreement (American Dental Partners Inc)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ On at least five (5) days prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before specifying the date on which such dollar amount requested), Operating Company shall make additional Capital Contributions are neededto the Company (each, an “Additional Capital Contribution”) on a monthly basis as necessary to reimburse Management Entity for certain approved expenses of the Company incurred in 2006 as set forth in Schedule E attached hereto and made a part hereof, and to meet the Company’s initial operating costs during its first year of operations consistent with the operating costs set forth in the approved Budget. The notice approved Budget for 2007 is attached hereto as Schedule A. The operating costs for the month of January 2007 Limited Liability Company Agreement Cxxx Realty Partners, LLC consistent with the approved Budget shall set forth be contributed upon the amount full execution of additional this Agreement, and the approved 2006 expenses shall be contributed upon the closing of the Merger (as defined in Section 8.2 hereof). Notwithstanding the foregoing, in no event shall Operating Company be required to contribute more than (i) Three Hundred Thousand Dollars ($300,000.00) in Capital Contributions to the Company (i.e., Initial Capital Contributions plus Additional Capital Contributions) prior to the closing of the Merger, or (ii) an aggregate of Two Million Dollars ($2,000,000.00) in total Capital Contributions to the Company (i.e., Initial Capital Contributions plus Additional Capital Contributions). Additional Capital Contributions shall be credited to the Capital Account of the Member making such Additional Capital Contributions. Notwithstanding the foregoing, if by April 1, 2007 the Merger has not closed and Columbia has not exercised its option to acquire the stock in the Operating Company, then, unless Operating Company immediately makes a Capital Contribution neededto fund the approved 2006 expenses and to cover all current operating costs consistent with the approved Budget, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member Entity shall be required to make elect to either (a) purchase the Percentage Interest owned by Operating Company for a cash purchase price equal to the total Capital Contributions made by Operating Company, or (b) dissolve the Company pursuant to Section 10.1 hereof. Management Entity must exercise such option by written notice to Operating Company prior to the earlier to occur of (x) April 15, 2007, (y) the closing of the Merger, and (z) the exercise by Columbia of its option to acquire the stock in the Operating Company. In the event that Management Entity exercises its option to purchase the Percentage Interest owned by Operating Company, Management Entity and Operating Company shall close on such transfer within ten (10) days after the exercise of such option, with the payment of the option purchase price being made in cash or immediately available funds (to an additional Capital Contributionaccount designated by Operating Company) by Management Entity and the transfer to Management Entity of Operating Company’s unencumbered right, title and interest in and to its Percentage Interest pursuant to commercially reasonable assignment documents. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity If Management Entity fails to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment either of an additional Capital Contribution pursuant to this Section 3.2(a)the elections, then the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued promptly be dissolved pursuant to this Section 3.2(a) 10.1 hereof and Operating Company shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior not make any Additional Capital Contributions to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Columbia Equity Trust, Inc.)
Additional Capital Contributions. In connection with (a) From time amounts contributed pursuant to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amountsSection 9.1.2, and (b) a reasonably detailed assessment determination by the Board of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion Directors of the Management CommitteeCompany that the Operating Company requires additional capital or proposes to issue securities convertible into or exchangeable for Membership Units (other than securities issuable to the Management Company in connection with the exercise, appropriate in lieu conversion or exchange of stock options, warrant or equity rights (i) existing prior to the date hereof or reserved for issuance prior to the date hereof, or (ii) otherwise approved by the affirmative vote of a Capital Contribution. Except for services as contemplated majority of Class B directors (including at least one (1) Class B director appointed by an applicable Work Planeach Member entitled to appoint a Class B director) (collectively, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan“Additional Capital”), each Member shall be given have the opportunity right (but not the obligation, other than obligations set forth in Section 9.1.2) to make contribute its share of such additional Additional Capital. For such purposes, each Member’s share of Additional Capital Contribution in proportion shall equal the percentage determined by dividing the Member’s Capital Contributions by the total Capital Contributions of all the Members as of such time. If, within fifteen (15) days following receipt from the Management Company of a notice specifying the amount of Additional Capital so required, a Member fails to contribute its share of such Additional Capital, then the other Members shall have the right to contribute their portion of the uncontributed Additional Capital as measured by the ratio of each Member’s share of the Additional Capital, excluding the share of Additional Capital for the non-contributing Member. If, within fifteen (15) days following receipt from the Management Company of a notice of such Member’s Percentage Interest. Upon payment right to contribute its portion of an additional Capital Contribution uncontributed Additional Capital, the Members have failed to contribute all of such Additional Capital, the Operating Company may issue Membership Units in exchange for the contribution of the uncontributed Additional Capital, on substantially the same terms as offered to the Members, to any Person, who shall become a New Member pursuant to this Section 3.2(a), the 8.2. The Operating Company shall issue additional Membership Units to each contributing Member, with each new Unit being issued for its fair market valuesuch Additional Capital. The fair market value of an additional Unit issued pursuant to this Section 3.2(aAll cash contributed by the Members (including the New Members) and all cash and investment accounts shall be determined by dividing (i) held in financial institutions organized under the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value laws of the Company’s assets will be adjusted United States of America and deposited in a manner provided under the definition of Gross Asset Value accounts denominated in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingUnited States Dollars.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Earthlink Inc)
Additional Capital Contributions. (a) From time to time, If the Management Committee, subject to approval by Board and a Supermajority Majority in Interest of the MembersClass A agree, in each instance in the sole absolute discretion of each applicable Person, then the holders of Class A Units may determine that make, but shall not be obligated to make an additional Capital Contributions in addition Contribution to the Initial Members’ Company in an aggregate amount to be agreed upon by the Board and the Majority in Interest of the Class A; provided, however, if Company and the operating subsidiaries have incurred material operating losses not provided for in the Business Plan and Budget at or prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which time any such additional Capital Contributions are needed. The notice shall set forth the amount sought, approval of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage InterestContributions shall also require the approval of each of the Class A Directors. Upon payment of an such additional Capital Contribution pursuant to this Section 3.2(a)Contribution, the Company shall issue additional Class A Units to each contributing MemberPerson, with each new Class A Unit being issued for its fair market value. The fair market value of an additional Class A Unit issued pursuant to this Section 3.2(a) paragraph shall be determined by dividing (i) the Company Valuation Company's fair market value immediately prior to such additional capital contribution by (ii) the number of Units units outstanding immediately prior to such additional Capital Contributionissuance. The Company's fair market value shall be reasonably determined by the Board. Immediately before issuing Class A Units, the Gross Asset Value of the Company’s 's assets will be adjusted in a manner provided under subsection (b) of the definition of Gross Asset Value in Appendix 1 attached heretoA hereof, and each Member's and Unit Holder's Capital Accounts Account will reflect such new adjusted Gross Asset ValueValue as required under Regulations sec1.704-1(b)(iv). Following Each Class A Unit Holder's Contribution Account shall also be adjusted. (b) If the holders of a Majority in Interest of Class A do not approve any requested additional Capital Contribution, and a Majority of the Board, together with the concurrence of each Class A Director, determines that an additional Capital Contributions are needed to enable the Company to conduct its business, in such event the Board may authorize issuance of additional Units, if necessary, and the Management Committee shall re-compute Board will determine the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of rights to be granted the additional Units and will give notice to the total Members in writing at least 30 days before the date on which the Members may make such additional capital contributions. Without the approval of a Majority in Interest of the Class A Members, no such issuance shall affect the rights of the Class A Members as to distribution priorities. The notice shall set for the amount of additional Capital Contributions needed, the purpose for which such contributions are needed, and the date by which the Members may contribute such additional amounts. No Member shall be required to make any such additional Capital Contribution. Upon payment of the additional Capital Contribution, the Company shall issue additional non-Class A or B Units to each contributing member, each new Unit issued for its fair market value. The fair market value of such non-Class A or B Units issued pursuant to this paragraph shall be determined by dividing the company's fair market value immediately prior to such additional Capital Contribution by the number of non-Class A or B Units then outstanding.outstanding immediately prior to such issuance. The Company's fair market value shall be reasonably determined by the Board after consulting with either an independent appraiser reasonably selected by the Board or the Company's accountants or financial advisors, if any. In addition, immediately before issuing such additional Units, the Gross Asset Value of the Company's assets will be adjusted in the manner provided under subsection (b) of the definition of Gross Asset Value in Appendix A hereof, and each Member's and Unit Holder's Capital Account will reflect such adjusted Gross Asset Value as required under Regulations sec1.704-1(b)(iv). 3.3
Appears in 1 contract
Additional Capital Contributions. (a) From If, at any time following the contribution to timethe Company in full of the Initial Capital Contribution, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine Managing Member determines that Capital Contributions in addition to the Initial Members’ prior Capital Contributions additional funds are needed to enable necessary for the Company to conduct meet its business in accordance with current or projected financial requirements that are contemplated pursuant to the Work terms of the Approved Business Plan. On making such a determination, and the Management Committee Members otherwise approve an additional capital contribution pursuant to Section 2.3.1.3 (if required by that section), then the Managing Member shall give deliver written notice of such determination actual or projected cash need (“Additional Capital Contribution Notice”) to all Members at least thirty the Investor Members, and a contribution date (30which shall be not less than fifteen (15) days before following the effective date of the Additional Capital Contribution Notice). The Investor Members shall contribute to the Company such amount on which a pro rata basis among Investor Members in accordance with their respective Investor Member Percentage Interests (“Additional Capital Contribution”). If any Investor Member fails to contribute the required amount of Additional Capital Contribution (“Delinquent Contribution”), then on written notice to the delinquent Investor Member (at the address set forth for notice on the signature page hereof), the other Investor Members, in addition to any other rights or remedies they may have at law or in equity, shall have the right to advance their pro-rata portion (such additional pro-rata portion calculated without regard to the delinquent Investor Member) of the Delinquent Contribution to the Company (each non-delinquent Investor Member’s contribution compensating for another Investor Member’s Delinquent Contribution is referred to in this Agreement as an “Additional Distress Capital Contribution”). If a non-delinquent Investor Member does not contribute its pro rata share of the Delinquent Contribution, then the remaining non-delinquent Investor Members shall have the right to make supplemental Additional Distress Capital Contributions are neededon a pro rata basis (calculated based on all Investor Member Percentage Interests owned by Investor Members making the supplemental Additional Distress Capital Contributions) to cover the shortfall. The notice In the event that any Additional Distress Capital Contribution is made to the Company, then, each contributing Investor Member’s Capital Account shall set forth be adjusted upward corresponding to 100% of the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, advance and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no each Investor Member’s respective Percentage Interest and Investor Member Percentage Interest shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, adjusted accordingly based on the amount of invested capital of each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Investor Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) including all Additional Capital Contributions and Additional Distress Capital Contributions, so that the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, Percentage Interests and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Investor Member Percentage Interests of the Investor Members based on the total number of Units held by each Member after the issuance of the additional Units who make Additional Capital Contributions and/or Additional Distress Capital Contributions shall increase, and the total number Percentage Interest and Investor Member Percentage Interest of Units then outstandingdelinquent Investor Members shall correspondingly decrease. The Members hereby expressly agree that the methodology set forth in this section is fair and reasonable to each of them. The Members hereby expressly and unconditionally waive the right to claim that the remedy for failing to make an Additional Capital Contribution set forth in this Section is unreasonable or unenforceable as liquidated damages.
Appears in 1 contract
Samples: Operating Agreement (Kw 2012 C, LLC)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business General Partner shall in accordance with the Work PlanPerformance Standard from time to time call for “Additional Capital Contributions” from each Partner in the aggregate amount required to fund the timely payment of Permitted Expenses for which the Partnership is not reasonably expected to have sufficient cash available (the “Required Capital”). On making such a determinationInvestor Partner may (but shall not be required to) in accordance with the Performance Standard call for Additional Capital Contributions if (i) General Partner fails to timely call for Additional Capital Contributions as required under this Agreement, the Management Committee shall give written (ii) Investor Partner has delivered notice of such determination to all Members at least thirty failure (30) days before the date on which notice shall include an explanation of why such additional Additional Capital Contributions are neededrequired) to General Partner and (iii) General Partner has not called for such Additional Capital Contributions within five (5) days following General Partner’s receipt of such notice. The notice shall set forth the amount of additional Each call for Additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution Contributions pursuant to this Section 3.2(a4.2 shall be an “Additional Capital Call” and shall be made by delivery of notice therefor to all other Partners (each, a “Capital Demand Notice”). Each Capital Demand Notice shall provide such details regarding the relevant Additional Capital Call as may be appropriate, including (in any event) the Permitted Expense(s) for which the Additional Capital Call is made, whether the Additional Capital Call relates to Permitted Expenses relating to the Portfolio Properties or to an Approved Property or to Partnership Expenses (in which case, the Additional Capital Contributions made with respect to such Partnership Expenses shall be allocated among Portfolio Capital Contributions and Approved Property Capital Contributions as reasonably determined by the General Partner), the Company shall issue additional Units amount of the Required Capital and each Partner’s pro rata share (based upon its Percentage Interest) of the Required Capital (with respect to each contributing MemberPartner, with each new Unit being issued for its fair market value“Pro Rata Share”). The fair market value Each Partner shall contribute its Pro Rata Share in cash by wire transfer of an additional Unit issued pursuant funds to this Section 3.2(athe Partnership account(s) shall be determined by dividing designated in the Capital Demand Notice on or prior to the date that is fifteen (i15) Business Days after receipt of the Company Valuation by (ii) the number of Units outstanding immediately Capital Demand Notice or prior to such additional later date as is set forth in the Capital ContributionDemand Notice or such earlier date as may be set forth in the Capital Demand Notice in accordance with Section 8.9(f) (the “Contribution Deadline”). Immediately before issuing Units, Each period beginning when the Gross Asset Value Partners receive a Capital Demand Notice and ending on the date of the Company’s assets will Contribution Deadline shall be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding“Contribution Period”.
Appears in 1 contract
Samples: LXP Industrial Trust
Additional Capital Contributions. (a) From time In the event the Company requires capital to timeacquire an Approved Qualified Property, the Management Committee, subject Manager shall be entitled to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of require an additional Capital Contribution needed, the purpose for which it is needed, the date by which (an "Additional Capital Contribution") from the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion an amount not in excess of the Management Committee, appropriate amount necessary to acquire such Approved Qualified Property plus all reasonable and customary costs and expenses incurred by the Company for Third Parties retained in lieu of a connection with the Acquisition Activities; provided that (x) each Member shall be required to contribute the amount determined by multiplying such Member's Percentage Interest by such Additional Capital Contribution. Except for services as contemplated by an applicable Work Plan, Contribution and (y) no Member shall be required to make contribute the amount described in clause (x) above if such amount, when added to the total of all of such Member's prior Capital Contributions, exceeds such Member's Capital Commitment. If the Manager shall provide to the Members a written notice calling for an additional Additional Capital Contribution (any such notice, a "Capital Call") setting forth the total amount of such Additional Capital Contribution. However, except the amount of each Member's share of such Additional Capital Contribution as contemplated by an applicable Work Plandetermined pursuant to clause (x) above, and the due date on which the Manager is requiring that such Additional Capital Contribution be contributed to the Company, which due date shall be at least ten (10) Business Days after the date on which the Members actually received the Capital Call and not more than one (1) Business Day prior to the scheduled closing of the acquisition of such Approved Qualified Property; each Member shall be given the opportunity to make contribute its share of such additional Additional Capital Contribution in proportion to immediately available funds on or before such Member’s Percentage Interestdue date. Upon payment If the acquisition of an additional Approved Qualified Property fails to close and the Manager determines there will not be a closing with fifteen (15) days of the date of the originally scheduled closing, the Manager (x) shall inform the Members of such failure and return each Member's share of the Additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to made with respect thereto and (y) each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) 's Capital Contribution shall be determined by dividing (i) restored to the Company Valuation by (ii) the number of Units outstanding level thereof immediately prior to such additional Additional Capital Contribution. Immediately before issuing UnitsIf, at any time after the Members have each contributed their entire Capital Commitment, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of Members elect to contribute additional Units, if necessarycapital, the Management Committee Members shall re-compute contribute such additional capital in accordance with their respective Percentage Interests. A Member may contribute to the Percentage Interests of Company an Approved Qualified Property, or an equity interest therein, pursuant to the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingContribution Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Lexington Corporate Properties Trust)
Additional Capital Contributions. (a) From time to time, If either Managing Member determines in the Management Committee, subject to approval by a Supermajority in Interest exercise of the Members, may determine its reasonable business judgment that Capital Contributions in addition to the Initial Members’ prior Additional Capital Contributions are needed necessary for the operation of the business of the Company, or to enable the Company to conduct perform its business obligations under the Lease (other than the Company’s obligations under the Lease to pay or reimburse Skechers for the costs of storage of Skechers’ property), which cannot be funded from Available Cash or obtained through financing (or which are impractical to be obtained through financing), such Managing Member may (but shall not be required to) give notice to the other Managing Member, including the amount required and the purposes therefor. Such Additional Capital Contributions shall be contributed by the Members according to their respective Contribution Percentages within ten (10) days after receipt of such notice calling for such Additional Capital Contributions. Failure by a Member to make its required Additional Capital Contribution shall give the other Member the rights and remedies specified in Section 4.1.5. If a Member who receives a call for an Additional Capital Contribution disputes the reasonableness of such Additional Capital Contribution, it shall give notice to the Member who made such call within such ten (10) day period, and if the Members cannot resolve the dispute within ten (10) Business Days thereafter, the dispute shall be submitted to expedited arbitration as set forth in Article 15. During the pendency of such arbitration, even though the Member who failed to make the Additional Capital Contribution shall not be deemed to be a Default Member under Section 4.1.5(c), the other Member may elect to loan to the Company the amount which the other Member failed to contribute in accordance with the Work Planprovisions of Section 4.1.5(d)(i). On making Provided, however, that if it is determined through arbitration that such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Additional Capital Contribution needed(or part thereof) was not reasonable, then the purpose for loan (to the extent of any amount which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall was not determined to be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(areasonable) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingnot bear interest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Skechers Usa Inc)
Additional Capital Contributions. (a) From time It is the intention and agreement of the Members that all funds to timepay Project Costs which may become necessary or appropriate for the purposes of the Company completing the development, construction and sale of the Project which were not included in the original Project Budget shall be contributed by Xxxxxxx Xxxx. It is agreed that Manager may in the exercise of its reasonable business judgment make such calls for Additional Capital Contributions as it believes necessary or appropriate for the purposes of the Company, the Management Committee, subject to approval by a Supermajority in Interest completion and disposition of all or any portion of the MembersProject, may determine that the creation of reserves and the payment of Company obligations, and Xxxxxxx Xxxx shall be obligated to make all such Additional Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least within thirty (30) days before after notice of the date on call therefor from Manager. If Xxxxxxx Xxxx disputes the determination or call by Manager, by no later than the end of the thirty (30) day period, Xxxxxxx Xxxx shall notify Manger in writing of Xxxxxxx Xxxx’x disagreement with the call, which such additional Capital Contributions are needed. The notice shall include the reasons Xxxxxxx Xxxx believes the call is not appropriate. If within ten (10) business days after Manager’s receipt of Xxxxxxx Xxxx’x notice, neither the Hearthstone Affiliates nor Xxxxxxx Xxxx have triggered the “Solomon’s Choice” election set forth in Section 19 below, Xxxxxxx Xxxx shall deliver to Manager funds equal to the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Additional Capital Contribution. Except Manager shall call for services the Additional Capital Contributions from time to time as contemplated by an applicable Work Planit deems appropriate, and in making such determinations shall take into account the remaining costs and obligations of the Company, the estimated costs to complete and dispose of the Project or other Company assets, and the remaining Commitments, but need not first exhaust such Commitments before making any call for Additional Capital Contributions. Manager shall also consider anticipated or projected savings in one or more line items of the Project Budget which Xxxxxxx Xxxx has verified to the reasonable satisfaction of Manager, as well as projected increases in sales revenue which projections shall not be greater than the actual sales prices achieved during the most recent six-month period for no Member shall less than two Phases (as defined in the Development Agreement) of Residences. The Members acknowledge and agree that only Xxxxxxx Xxxx will be required to make any Additional Capital Contributions. Once an additional Additional Capital Contribution. HoweverContribution is made by Xxxxxxx Xxxx, except as contemplated by an applicable Work Plan, each Member the amount of such Additional Capital Contribution shall be given the opportunity to make such additional considered a Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to Xxxxxxx Xxxx for all other purposes of this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingAgreement.
Appears in 1 contract
Samples: Operating Agreement (National Credit & Guaranty CORP)
Additional Capital Contributions. (a) From If at any time or from time to timetime after the Effective Date, additional funds (a "Shortfall") are required (a) for the reasonable working capital needs of the Company for both operating and capital needs, and (b) for all other costs and expenses (whether operating or capital in nature) in connection with the operation of the Projects or in connection with the operations of the Subsidiaries or the Company, in each case as determined by the Executive Committee, and the Company is unable to obtain or the Executive Committee has determined not to seek third party debt financing, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Executive Committee may determine that call (but shall not be obligated to) for Additional Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of such Shortfall and the Members shall make such Additional Capital Contributions as called for by the Executive Committee. Notwithstanding the foregoing, to the extent that an Annual Business Plan approved by the Executive Committee contemplates that the Members will make Additional Capital Contributions to pay such Shortfall or if the Shortfall is required to pay costs and expenses of the Company or a Subsidiary described in the definition of "Non-discretionary Additional Capital Contributions" that in the good faith judgment of a Member are needed by the Company, then the Members shall make Additional Capital Contributions in the amount of such Shortfall on the request of either the Manager or any Member. Capital items for which reserves have been established pursuant to the approved Annual Business Plan will be funded first from the reserves therefor before any calls are made for Additional Capital Contributions to pay for such capital items. Notwithstanding anything to the contrary contained in this Agreement, Additional Capital Contributions shall not be used to pay Pursuit Costs, or any costs and expenses included within the Project Acquisition Costs for a Project, but Non-Discretionary Additional Capital Contributions may be used to pay the cost to carry a Project to break-even after such Project's acquisition. Each additional Capital Contribution needed, the purpose for which it made under this Section 6.2 is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a an "Additional Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional " and also either a "Discretionary Additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional " or a "Non-Discretionary Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding".
Appears in 1 contract
Samples: Limited Liability Company Agreement (Storage Usa Inc)
Additional Capital Contributions. (a) From The Manager may, from time to time, call upon each Member to make additional cash capital contributions to the Management CommitteeCompany, subject pro rata to approval by a Supermajority each Member’s Percentage Interest in Interest such amount as the Manager determines is reasonably required to satisfy the capital needs of the MembersCompany and the Subsidiary Companies (each, may determine that an “Additional Capital Contribution”), including, without limitation, for purposes of funding any amounts payable to the applicable Third Party Lender in connection with the extension of the maturity date under the 77 Greenwich Mortgage Loan. The Manager shall do so by delivering to each Member a notice (“Capital Call Notice”; the date of the Capital Call Notice is referred to herein as the “Capital Call Notice Date”) setting forth (i) the total of all Additional Capital Contributions in addition the Members are being called to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determinationmake, the Management Committee shall give written notice of such determination to all Members at least thirty (30ii) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which such Additional Capital Contribution shall be made to the Members may contribute Company (such additional amountsdate, the “Capital Contribution Date”), which date shall not be sooner than ten (10) days after the Capital Call Notice Date, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in (iii) the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Additional Capital Contribution in proportion to be paid by the Member to which the notice is addressed, which shall equal the product of (x) the aggregate Additional Capital Contributions times (y) such Member’s Percentage InterestInterest as of the Capital Call Notice Date. Upon payment of Notwithstanding anything herein to the contrary, (A) each Member shall have the right, but not the obligation, to make an additional Additional Capital Contribution in the amount set forth in the applicable Capital Call Notice or in such other amount as the applicable Member elects to make in its sole discretion, (B) if a Termination For Cause has occurred, at the Manager’s discretion, such Additional Capital Contribution may be called solely from the Investor Member and (C) provided no Termination For Cause has occurred, the Manager shall not request an Additional Capital Contribution from the Members pursuant to this Section 3.2(a)5.1.2(a) (but, for the avoidance of doubt, shall be permitted to cause the Company shall issue additional Units and/or any Subsidiary Company to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued enter into Additional Company Debt Financing pursuant to this Section 3.2(a5.1.2(b) shall be determined by dividing at all times) for the period commencing on the Effective Date and ending on the one (i1) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value year anniversary of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingEffective Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Trinity Place Holdings Inc.)
Additional Capital Contributions. (a) From If at any time or from time to timetime after all of the Initial Capital Contributions have been contributed, the Management CommitteeExecutive Committee determines that additional funds (“Mandatory Capital”) are reasonably required (i) for costs contemplated by the Initial Budget and Operating Plan, subject including but not limited to approval by a Supermajority in Interest costs associated with due diligence, costs of acquiring, owning, leasing, selling, financing or refinancing the Real Property or Project, or design, construction, entitlement, development and market or sale of the MembersReal Property, may determine that Capital Contributions in addition startup costs or working capital, but only to the extent not included in the Initial Members’ prior Capital Contributions are needed Contributions, as adjusted, made pursuant to enable Section 4.01, (ii) to meet the ongoing obligations, liabilities, Expenses or reasonable business needs of the Company to conduct its business in accordance with the Work then applicable Budget or Operating Plan. On making such a determination, or comparable or other costs that are not provided for in the Budget and Operating Plan, but that are agreed to by the Executive Committee, or (iii) for any other purpose, the Management Executive Committee may (but shall give written notice not be obligated to) require that the Members make further capital contributions (“Additional Capital Contributions”) in the amount of such determination to all Members at least Mandatory Capital. If so requested by the Executive Committee, each Member shall, within thirty (30) days before thereafter (or by any earlier date to prevent an adverse impact on the Project or the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated any deposit of borrower’s funds required by an applicable Work Plan, each Member shall be given any Loan documents that have been approved by the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution Executive Committee and entered into by LR8 Owner pursuant to Section 4.05 of this Section 3.2(aAgreement), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for contribute its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing pro rata share (i) the Company Valuation by (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted in a manner provided under the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute based upon the Percentage Interests of the Members based on at the total number time of Units held by each Member after the issuance such request) of the additional Units amount of the applicable Mandatory Capital. The Members agree that the Executive Committee may approve Mandatory Capital calls to fund hard and soft costs for the Project that will need to be funded in periodic Additional Capital Contributions as development, entitlement, construction and marketing of the Project progresses in accordance with a Budget and Operating Plan approved by the Executive Committee. The Initial Capital Contributions and the total number Additional Capital Contributions shall be made by wire transfer of Units then outstandingfunds to a Company account (or other escrow account) designated by the Executive Committee. The initial determination of the amount of Mandatory Capital required to fund Additional Capital Contributions shall be based upon the Initial Budget and Operating Plan that is approved by the Executive Committee.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Home Co LLC)
Additional Capital Contributions. (a) From If and to the extent the Company shall require additional capital from time to timetime for any capital expenditures, repair or replacement costs, or increased operation costs in order for the Management CommitteeCompany’s facilities, subject including the Assets and other facilities then owned by the Company, to approval by a Supermajority in Interest of satisfy the MembersMinimum Production Requirements, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business in accordance with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member then CFS shall be required to make an additional Capital ContributionContribution(s) in the amount determined by the Board of Managers to permit such operation (“Required Contributions”) upon at least ten Business Days’ notice thereof from the Board of Managers. HoweverIf and to the extent the Company shall require additional capital from time to time to satisfy its working capital requirements, except as contemplated by an applicable Work Plan, each Member then CFS shall be given required to make additional Capital Contribution(s) to satisfy such working capital requirements upon at least ten Business Days’ notice thereof from the opportunity Board of Managers. The Board of Managers shall consider whether to require CFS to make such Required Contributions at least once each Fiscal Year in connection with its approval of the annual budget. In addition, CFS shall be permitted, but not required, to make any additional Capital Contribution Contributions in proportion excess of the Required Contributions in cash or other property from time to time as it determines in its sole discretion. At such Member’s Percentage Interest. Upon payment of time as CFS makes an additional Capital Contribution pursuant to the Company, the amount and form of the additional Capital Contribution shall be based on the Fair Market Value thereof, and shall result in a corresponding increase in such Member’s Capital Account, as determined by the Board of Managers. (b) Except for the CHS Capital Contribution, CHS shall not be permitted or required to make Capital Contributions in respect of its Membership Interests. (c) The provisions of this Section 3.2(a5.4 are intended solely for the benefit of the Members in their capacity as members, and, to the fullest extent permitted by applicable Law, shall not be construed as conferring any benefit upon any creditor (including a Member in its capacity as a creditor) of the Company (and no such creditor shall be a third-party beneficiary of this Agreement), and no Member shall have any duty or obligation to any creditor of the Company shall issue to make any additional Units Capital Contributions or to each contributing Member, with each new Unit being issued for its fair market valueprovide any additional financing or to cause any Member to consent to the making of additional Capital Contributions or to the provision of additional financing. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) 5.5 Capital Withdrawal Rights; CFS Obligations. CFS shall be determined by dividing permitted, but not required, to withdraw assets from the Company as a return of capital (a “Capital Withdrawal”) from time to time in its sole discretion; provided, however, that at all times prior to the dissolution and winding up of the Company as provided in Article XII, CFS shall be required to (i) maintain sufficient operating assets in the Company Valuation by such that the Company’s facilities shall have aggregate capacity to produce at least 2,000,000 nutrient tons of fertilizer product (the “Minimum Production Requirements”) and (ii) procure, for the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value benefit of the Company’s assets will , a Liquidity Facility with availability of at least $427,000,000 to be adjusted in a manner provided under used solely for the definition of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.purposes
Appears in 1 contract
Samples: CHS Inc
Additional Capital Contributions. (a) From time to time, To the Management Committee, subject to approval by a Supermajority in Interest of extent that the Members, may determine that Capital Contributions Company requires funds in addition to the Initial Members’ prior Capital Contributions are needed to enable amounts provided in Sections 4.1 and 4.2 and the Company to conduct its business Members have determined in accordance with the Work Plan. On making such a determinationSection 5.3 hereof that additional capital contributions are necessary or desirable, the Management Committee Manager shall give written notice (the “Cash Call”) to each Member setting forth in reasonable detail (i) the amount and purpose of such determination to all Members at least thirty required funds, (30ii) days before the date on which such additional the funds are required (the “Additional Capital Contributions are needed. The notice shall set forth Contribution Date”) and (iii) the amount of additional Capital Contribution neededto be contributed by each Member, the purpose for which it is needed, amount shall be in proportion to each Member’s Interest on the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu Cash Call. Within twenty (20) calendar days (the “Call Period”) after the date of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Planthe Cash Call, each Member shall be given contribute to the opportunity to make such additional Company as an “Additional Capital Contribution” the funds requested in the Cash Call. Until the Company has received the total amount of the Additional Capital Contribution set forth in proportion the Cash Call, all funds advanced to the Company by a Member in fulfillment of such Member’s Percentage InterestCash Call shall be deposited in a separate escrow account (the “Escrow Account”) in the name of and for the benefit of such Member advancing such funds, and such Escrow Account shall be segregated from the general funds (and not available to satisfy the obligations) of the Company. Upon payment of an additional Capital Contribution Any Escrow Account established pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) immediately preceding sentence shall be determined established using the employer identification number of the Member in whose benefit such Escrow Account is being established and shall be treated as owned by dividing such Member for all purposes, including U.S. federal income tax purposes. Any interest accrued in any Escrow Account for the benefit of a Member shall be (i) paid to that Member upon either the release of the Additional Capital Contributions to the Company Valuation by or the return of the entire Escrow Account to the Non-Defaulting Member or Members as provided in Section 4.3(b), and (ii) reported by such Member on its U.S. federal income tax return and not on the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value U.S. income tax return of the Company. The exclusive remedies for a Member’s assets will failure to make an Additional Capital Contribution to capital in accordance with a Cash Call shall be adjusted those set forth in a manner provided under the definition of Gross Asset Value in Appendix 1 attached heretothis Section 4.3, and Capital Accounts will reflect such new Gross Asset Value. Following no Member shall have any personal or recourse liability for the issuance of additional Units, if necessary, the Management Committee shall re-compute the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingfailure to satisfy a Cash Call.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kennedy-Wilson Properties (IL))
