Common use of Defaulting Members Clause in Contracts

Defaulting Members. If any Member fails to contribute the full amount of its Additional Contributions required to be made pursuant to this Section 2 on or prior to the date (the "Due Date") specified in the Call Notice (such Member, a "Defaulting Member"), then, in addition to such Member losing its voting rights under this Agreement, as the exclusive remedies of the Company and the other Members (each a "Non-Defaulting Member"), the Non-Defaulting Member shall have the following remedies, exercisable by notice from the Non-Defaulting Member to the Defaulting Member: (i) to cause the Company to xxx the Defaulting Member for damages, and (ii) either: (A) to elect to lend (or to cause the Non-Defaulting Member's affiliates to lend), to the Defaulting Member or to the Company, as determined in the sole discretion of the Non-Defaulting Member, the amount of such Additional Contribution that was not made timely by the Defaulting Member, or (B) to elect to contribute the amount of such Additional Contribution that was not made timely by the Defaulting Member. Upon a Member becoming a Defaulting Member and the Non-Defaulting Member timely contributing both (x) the Additional Contribution required to be made by the Non-Defaulting Member and (y) the portion of the Additional Contribution that was not made timely by the Defaulting Member, Shares of the Defaulting Member shall be deemed immediately redeemed by the Company and reissued to the Defaulting Member and the Non-Defaulting Member(s) in the proportion that each Member's Invested Capital (as hereinafter defined) bears to the total Invested Capital of all Members. Upon the failure of the Non-Defaulting Member to elect which of the remedies specified in clause (ii)(A) or (ii)(B) of this Section 2(b) has been selected, by written notice to the Company and the Defaulting Member given within thirty (30) days after funding the share of the Additional Contribution not made by the Defaulting Member, the remedy described in such clause (ii)(B) shall be deemed to have been selected. The remedies described in clauses (i) and (ii) of this Section 2 shall be cumulative, and all or any of them may be elected and apply simultaneously, except that the remedies described in clauses (ii)(A) and (ii)(B) of this Section 2(b) shall be mutually exclusive with respect to each Call Notice.

Defaulting Members. If (a) Upon the failure of any Member fails (a “Defaulting Member”) to contribute pay in full any portion of such Member’s Capital Commitment within the full amount of its Additional Contributions required to be made pursuant to this Section 2 on or prior to the date (the "Due Date") time period specified in the related Capital Call Notice (the Business Day next succeeding the tenth (10th) Business Day immediately following the expiration of such Member, a "Defaulting Member"time period being the “Default Date”) in accordance with Section 3.1(a), then, in addition to such Member losing its voting rights under this Agreement, as the exclusive remedies of the Company and the other Members (each a "Nonnon-Defaulting Member"), the Non-Defaulting Member in its sole discretion, shall have the right, without notice to the Defaulting Member, to pursue one or more of the following remediesremedies on behalf of the Company: (i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have; (ii) contribute such unpaid portion to the Company, exercisable by notice which amount shall be deemed a Temporary Advance and returned to the non-defaulting Member pursuant to Section 3.2 hereof; 14 (iii) charge interest on the unpaid balance of any overdue Capital Commitment at a rate equal to the Default Rate, from the Non-date such balance was due and payable through the date full payment for such Capital Commitment is actually made; and/or (iv) exercise all rights of a secured creditor at law or in equity, including the right to sell all of the interest in the Company held by the Defaulting Member to the Defaulting Company or another Person (including, without limitation, an existing Member: (i) at a price equal to cause the Company to xxx Capital Account of the Defaulting Member for damagesadjusted to reflect the Value of the Company as determined as of the date of the last valuation pursuant to Section 9.4 (and be required to assume the Defaulting Member’s remaining Capital Commitment), with the proceeds from such sale to be applied in the following order: first, to the payment of the expenses of the sale; second, to the payment of the expenses of the Company resulting from the default, including court costs and penalties, if any, and (ii) either: (A) reasonable attorneys’ fees and costs; third, to elect the payment of all amounts due from the Defaulting Member to lend (or to cause the Non-Company, including the amount of the Defaulting Member's affiliates ’s Capital Contribution required pursuant to lendthe related Capital Call Notice and interest due thereon pursuant to Section 3.3(a)(iii); fourth, to the Defaulting Member, an amount up to fifty percent (50%) of the amount the Defaulting Member or previously contributed to the Company less any distributions previously made to the Defaulting Member; and thereafter, any remainder to the Company; Except as set forth below, as determined in the sole discretion of the Nonnon-Defaulting Member, the amount ’s election to pursue any one of such Additional Contribution that was remedies shall not made timely by be deemed to preclude the Company or such non-Defaulting MemberMember from pursuing any other such remedy, or (B) to elect to contribute any other available remedy, simultaneously or subsequently. For the amount avoidance of such Additional Contribution that was not made timely by the Defaulting Member. Upon doubt, if applicable, a Member becoming shall not be deemed to be a Defaulting Member and until the Non-Defaulting resolution of any dispute as to whether the Member timely contributing both (x) the Additional Contribution required failed to be made by the Non-Defaulting Member and (y) the pay in full any portion of such Member’s Capital Commitment within the Additional Contribution that was not made timely by time period specified in the Defaulting Memberrelated Capital Call Notice in accordance with Section 3.1(a). (b) Notwithstanding any provision of this Agreement to the contrary, Shares of the (i) a Defaulting Member shall be deemed immediately redeemed by remain fully liable to the creditors of the Company and reissued to the extent provided by law as if such default had not occurred; (ii) a Defaulting Member and shall not be entitled to distributions made after the Non-Defaulting Member(sDefault Date until the default is cured; (iii) in the proportion that each Member's Invested Capital (as hereinafter defined) bears to the total Invested Capital of all Members. Upon the failure of the Non-a default may be cured by a Defaulting Member to elect which of the remedies specified in clause (ii)(A) or (ii)(B) of this Section 2(b) has been selected, within ten days by written notice contribution to the Company and of an amount equal to the Defaulting Member given within thirty (30) days after funding the share sum of the Additional Contribution unpaid balance of any overdue Capital Commitment plus interest accrued therein at the Default Rate; and (iv) the Company shall not made by make new Investments after the Defaulting MemberDefault Date until the default is cured, the remedy described in such clause (ii)(B) shall be deemed except as permitted pursuant to have been selected. The remedies described in clauses (i) and (ii) of this Section 2 shall be cumulative, and all or any of them may be elected and apply simultaneously, except that the remedies described in clauses through (ii)(Aviii) and (ii)(B) of this Section 2(b) shall be mutually exclusive with respect to each Call Notice.of

Defaulting Members. If any In the event a Member fails to contribute the full amount of its Additional Contributions required to be made pursuant to this Section 2 on or prior to the date (the "Due Date") specified in the Call Notice (such is a Defaulting Member, a "Defaulting Member"), then, in addition to such Member losing shall be deemed to have offered all of his or its voting rights under this Agreement, as the exclusive remedies of Class A Units for purchase by the Company at the Defaulting Member Purchase Price, and the other Members (each a "Non-Defaulting Member"), the Non-Defaulting Member Company shall have the following remedies, exercisable by notice from right (but not the Non-Defaulting Member to the Defaulting Member: (iobligation) to cause the Company to xxx purchase all and only all of such Units at the Defaulting Member for damagesPurchase Price. If the Company wished to exercise this purchase right, and (ii) either: (A) to elect to lend (or to cause the Non-Defaulting Member's affiliates to lend), it must do so by giving written notice to the Defaulting Member or (with a copy thereof to the Company, as determined in the sole discretion each of the Non-Defaulting Member, the amount of such Additional Contribution that was not made timely by the Defaulting Member, or (Bother Founding Members) to elect to contribute the amount of such Additional Contribution that was not made timely by the Defaulting Member. Upon a Member becoming a Defaulting Member and the Non-Defaulting Member timely contributing both (x) the Additional Contribution required to be made by the Non-Defaulting Member and (y) the portion of the Additional Contribution that was not made timely by the Defaulting Member, Shares of the Defaulting Member shall be deemed immediately redeemed by the Company and reissued to the Defaulting Member and the Non-Defaulting Member(s) in the proportion that each Member's Invested Capital (as hereinafter defined) bears to the total Invested Capital of all Members. Upon the failure of the Non-Defaulting Member to elect which of the remedies specified in clause (ii)(A) or (ii)(B) of this Section 2(b) has been selected, by written notice to the Company and the Defaulting Member given within thirty (30) days after funding the share final, non-appealable judgment of a court or an arbitrator that finds such Member to be a Defaulting Member (the “Company Election” and the “Company Election Period”) of its election to purchase all of the Additional Contribution Class A Units of the Defaulting Member. If the Company does not made by timely elect to purchase all of the Class A Units of the Defaulting Member, the remedy described in Company shall have no right to purchase any of such clause (ii)(B) shall be deemed to have been selectedUnits. The remedies described in clauses Upon a timely election, (i) the Company and the Defaulting Member shall determine the Defaulting Member Purchase Price or, in the absence of agreement, the Defaulting Member Purchase Price shall be determined by arbitration pursuant to Section 11.9, which shall be payable, less any Permitted Offset and without interest, in a single installment on the earlier of (a) the seventh anniversary of the date of the final, non-appealable judgment of a court or an arbitrator that finds such Member to be a Defaulting Member and (b) the date the Company sells all or substantially all of its assets (or otherwise disposes of such assets in a manner that results in the Xxxxxx Related Parties no long Controlling them) or the date an equity sale occurs that results in a Person (other than the Xxxxxx Related Parties) Controlling the Company, and (ii) of this Section 2 the Company shall be cumulative, execute and all or any of them may be elected and apply simultaneously, except that deliver to the remedies described in clauses (ii)(A) and (ii)(B) of this Section 2(b) shall be mutually exclusive with respect to each Call Notice.Defaulting Member the Promissory Note attached hereto as Exhibit B.

Defaulting Members. If (i) In the event any Member fails to contribute the full make any Required Contribution when due pursuant to Section 4.1(b), which failure continues for ten (10) Business Days (a “Defaulting Member”), interest will accrue on any unpaid amount of its Additional Contributions required such Required Contribution (such unpaid Required Contribution, the “Base Default Amount”) until the amount thereof, together with such interest (if any) is paid in full, at an interest rate equal to the Default Rate. The day immediately following the end of such ten (10) Business Day period is referred to herein as the “Default Date.” Such interest shall be made compounded annually and computed on the basis of the actual number of days elapsed over a year of three hundred sixty-five (365) days. So long as a Defaulting Member’s Base Default Amount and all accrued interest thereon (the “Total Default Amount”) remains unpaid: (A) such Defaulting Member shall have no right to receive any distributions from the Company or allocations of the Company’s profits, losses, tax credits, or other distributions, or to participate in any additional Capital Contribution, (B) such Defaulting Member shall automatically cease to have any voting or consent rights or any right to manage the Company as a Managing Member for so long as such Member is a Defaulting Member, and (C) such Defaulting Member shall have no right to exercise any preemptive rights pursuant to this Section 2 on or 3.4. A Defaulting Member shall remain fully obligated to make Capital Contributions in respect of its Total Default Amount. If such Total Default Amount is funded in full by a Defaulting Member prior to the date (the "Due Date") specified in the Call Notice (on which a Contributing Member funds such Member, a "Defaulting Member"Base Default Amount under Section 4.1(e)(ii), then, in addition to then such Member losing its voting rights under this Agreement, as the exclusive remedies of the Company and the other Members (each a "Non-Defaulting Member"), the Non-Defaulting Member shall have the following remedies, exercisable by notice from the Non-Defaulting Member to the Defaulting Member: (i) to cause the Company to xxx the Defaulting Member for damages, and (ii) either: (A) to elect to lend (or to cause the Non-Defaulting Member's affiliates to lend), to the Defaulting Member or to the Company, as determined in the sole discretion of the Non-Defaulting Member, the amount of such Additional Contribution that was not made timely by the Defaulting Member, or (B) to elect to contribute the amount of such Additional Contribution that was not made timely by the Defaulting Member. Upon a Member becoming a Defaulting Member and the Non-Defaulting Member timely contributing both (x) the Additional Contribution required to be made by the Non-Defaulting Member and (y) the portion of the Additional Contribution that was not made timely by the Defaulting Member, Shares of the Defaulting Member shall be deemed immediately redeemed by issued Additional Units in accordance with Section 4.1(d)(ii) in exchange for payment of the Company Base Default Amount (excluding, for the avoidance of doubt, any interest accrued thereon) and reissued to the such Defaulting Member and the Non-Defaulting Member(s) in the proportion that each Member's Invested Capital (as hereinafter defined) bears to the total Invested Capital of all Members. Upon the failure of the Non-shall no longer be a Defaulting Member to elect which of the remedies specified or in clause (ii)(A) or (ii)(B) of this Section 2(b) has been selected, default. If such Total Default Amount is funded by written notice to the Company and the a Defaulting Member given within thirty (30) days after the date on which a Contributing Member funds such Base Default Amount under Section 4.1(e)(ii), then such Defaulting Member shall be issued any Additional Units in exchange for funding the share of difference between the Additional Contribution not made Total Default Amount minus the Base Default Amount funded by the Defaulting such Contributing Member, the remedy described and such Defaulting Member shall no longer be a Defaulting Member or in such clause (ii)(B) shall be deemed to have been selected. The remedies described in clauses (i) and (ii) of this Section 2 shall be cumulative, and all or any of them may be elected and apply simultaneously, except that the remedies described in clauses (ii)(A) and (ii)(B) of this Section 2(b) shall be mutually exclusive with respect to each Call Noticedefault.