Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. (a) If any Member or Economic Interest Owner (a "Non-Contributing Person") fails to contribute its portion of the amount of the additional Capital Contribution called by the Members in accordance with Section 6.2 above, then the following shall occur: (i) the Company shall have the right to obtain the additional Capital Contribution not made by the Non-Contributing Person from the other Members and Economic Interest Owners; (ii) the Non- Contributing Person shall relinquish all of its Voting Rights, if any, unless and until it has made its Cure Contribution (as defined below) in full; and (iii) the Company and the other Members and Economic Interest Owners shall have all other rights set forth in this Section 6.3. Thereupon, the other Members and Economic Interest Owners shall have the right, but not the obligation, to contribute on a pro rata basis determined with reference to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion of the additional Capital Contribution not contributed by the Non-Contributing Person, and each such Member or Economic Interest Owner shall deliver to the Company such amount not later than ten (10) days following the expiration of the thirty (30) day period referenced above. All such Capital Contributions made by Members and Economic Interest Owners pursuant to this Section 6.3, shall be credited to the Capital Account of the Member or Economic Interest Owner making the Capital Contribution. A Member or Economic Interest Holder who was not a Non-Contributing Person with respect to any such capital call shall not be deemed a Non- Contributing Person (and shall not relinquish any Voting Rights) by reason of such Member or Economic Interest Owner choosing not to participate in additional contributions to make up for the share not contributed by the Non-Contributing Person; provided, however, that if the Members or Economic Interest Owners which elect to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such funds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all of the Members and Economic Interest Owners pursuant to the terms of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person with respect to such new capital call for purposes hereof.

FAILURE TO CONTRIBUTE. (a) If a Partner does not contribut~~ by the time required all or any Member or Economic Interest Owner (a "Non-Contributing Person") fails to contribute its portion of a Capital Contribution that Partner is required to make as provided in this Agreement, the amount Partnership may exercise, on notice to that Partner (the "Delinquent Partner"), one or more of the additional Capital Contribution called by the Members in accordance with Section 6.2 above, then the following shall occurremedies: (i) taking such action (including, without limitation, court proceedings) as the Company shall have the right Managing General Partner may deem appropriate to obtain paym~ nt by the additional Delinquent Partner of the portion of the I)elinquent Partner's Capital Contribution not made by that is in default, together with interest on that amount at the Non-Contributing Person Default Interest Rate from the other Members date that the Capital Contribution was due until the date that it is made, all at the cost and Economic Interest Ownersexpense of the Delinquent Partner; (ii) permitting the Non- Contributing Person shall relinquish all of its Voting RightsManaging General Partner and, to thE extent the Managing General Partner does not elect to do so, the other Partners in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Partner," or "Lending Partners", if anymore than one), unless to advance the portion of the Delinquent Partner's Capital Contribution that is in default, with the following results: (A) the sum advanced constitutes the principa. of a loan from the Lending Partner to the Delinquent Partner and a Capital Contribution of that -13.. PTF-1 77R2S-OflO~2Q � sum to the Partnership by the Delinquent Partner under the applicable provisions of this Agreement, (B) the principal balance of the loan and all accrued unpaid interest is due and payable on the tenth day after written demand by the Lending Partner to the Delinquent Partner, (C) the principal balance of the loan bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Partner, (D) all distributions from the Partnership that otherwise would be made to the Delinquent Partner (whether before or aft3r dissolution of the Partnership) instead shall be paid to the Lending Partner u ~til the loan, together with all interest accrued on it, have been paid in full to the Lending Partner (with payments being applied first to accrued and unpaid interest and then to principal), (E) the payment of the loan and interest accrued on it is secured by a security interest in the Delinquent Partner's Partnership Interest, as more fully set forth in Section 4.03(b), and (F) the Lending Partner has made its Cure Contribution the right, in addition to the other rights and remedies granted to it under this Agreement or at la~ or in equity, to take any action (as defined belowincluding, without limitation, court proceedings) in fullthat the Lending Partner may deem appropriate to obtain payment by the Delinquent Partner of the loan and all accrued and unpaid interest on it, at the cost and expense of the Delinquent Partner; and (iii) exercising the Company and rights of a secured party under the other Members and Economic Interest Owners shall have all other rights lJniforrn Commercial Code of the State of Texas, as more fully set forth in this Section 6.34.03(b); or -14- ETF- I 737B2 5-000330 � (iv) exercising any other rights and remedies available it law or in equity. Thereupon, the other Members and Economic Interest Owners shall have the right, but not the obligation, to contribute on a pro rata basis determined with reference (b) Each Partner grants to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion of the additional Capital Contribution not contributed by the Non-Contributing PersonPartnership, and to each such Member or Economic Interest Owner shall deliver to the Company such amount not later than ten (10) days following the expiration of the thirty (30) day period referenced above. All such Capital Contributions made by Members and Economic Interest Owners pursuant to this Section 6.3, shall be credited to the Capital Account of the Member or Economic Interest Owner making the Capital Contribution. A Member or Economic Interest Holder who was not a Non-Contributing Person Lending Partner with respect to any such capital call shall not be deemed loans made by the Lending Partner to that Partner as a Non- Contributing Person (Delinquent Partner as described in Section 4.03(a)(ii), as security, equally and shall not relinquish ratably, for the p.iyment of all Capital Contributions that Partner has agreed to make and the payment of a I loans and interest accrued on them made by Lending Partners to that Partner as a Delinquent Partner as described in Section 4.03(a)(ii), a security interest in and a general lien on its Partnership Interest and the proceeds of that Partnership Interest, all under the Unifo -m Commercial Code of the State of Texas. On any Voting Rights) by reason default in the payment of a Capital Contribution or in the payment of such Member a loan or Economic Interest Owner choosing not interest accrued on it, the Partnership or the Lending Partner, as applicable, is entitled to participate in additional contributions to make up for all the share not contributed by rights and remedies of a secured party under the Non-Contributing Person; provided, however, that if the Members or Economic Interest Owners which elect to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such funds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all Uniform Commercial Code of the Members and Economic Interest Owners pursuant to the terms State of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person Texas with respect to such new capital call for purposes hereof.the security interest granted in this Sec- tion 4.03(b). Each Partner shall execute and deliver to the Partnership and the other Partners all financing statements and other instruments that the Managing General Partner or the Lending Partner, as applicable, may request to effectuate and carry out the preceding provisions of this Section 4.03(b). At the option of the Managing General Partner o~ a Lending Partner, this Agreement or a carbon, photographic, or other copy of this Agreerient may serve as .a financing statement. 4.04

FAILURE TO CONTRIBUTE. If either the IMC Partner (aor, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) If or the FRP Partner (in any Member or Economic Interest Owner (a such case, the "Non-Contributing PersonPartner") fails fails, in whole or in part, to contribute its portion make any cash contribution or defaults, in whole or in part, in any other obligation to pay money under this Agreement within fifteen (15) days of giving of a due notice by either of the other Partners to the Non-Contributing Partner that such cash contribution is due or that the Non-Contributing Partner has defaulted in any other such obligation hereunder, the IMC Partner (with respect to circumstances in which the FRP Partner is the Non-Contributing Partner) or the FRP Partner (with respect to circumstances in which the IMC Partner (or, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) is the Non-Contributing Partner), as the case may be (in either such case, the "Contributing Partner"), shall have the right to advance directly to the Partnership such additional cash contribution, or portion thereof, or such other payment of money, or portion thereof, as the Non-Contributing Partner has failed to make or defaulted on (the "Non-Contributing Partner's Share"), and such advance, together with a proportionate amount of the additional Capital Contribution called corresponding cash contribution or other payment, if any, made by such Contributing Partner, shall be deemed a loan by the Members in accordance with Section 6.2 above, then Contributing Partner to the following Partnership (the "Partner Loan"). A Partner Loan shall occurbear interest at the rate equal to the lower of: (i) the Company maximum rate allowed by law; or (ii) five (5) percentage points over the Prime Rate. The Partner Loan shall be recouped and otherwise repaid from all funds which would otherwise have been available to make distributions which the Partners would otherwise be entitled to receive from the Partnership but for this Section 3.03, all of which shall instead be paid by the Partnership to the Contributing Partner and applied to the payment of the Partner Loan and all interest thereon, until the same shall have been paid in full. It is understood, however, that to the right extent the principal and interest of a Partner Loan are not repaid in full by the Partnership from all funds which would otherwise have been available to obtain make distributions (including any distributions pursuant to Section 12.07(b)) to the additional Capital Contribution not made by Partners, the Non-Contributing Person from the other Members and Economic Interest Owners; (ii) the Non- Contributing Person Partner shall relinquish all of its Voting Rights, if any, unless and until it has made its Cure Contribution (as defined below) in full; and (iii) the Company and the other Members and Economic Interest Owners shall have all other rights set forth in this Section 6.3. Thereupon, the other Members and Economic Interest Owners shall have the right, but not the obligation, be obligated to contribute on a pro rata basis determined with reference repay an amount equal to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion of the additional Capital Contribution not contributed by the Non-Contributing Person, and each such Member or Economic Interest Owner shall deliver to the Company such amount not later than ten (10) days following the expiration Partner's Share of the thirty (30) day period referenced aboveoutstanding balance of the principal and interest of such Partner Loan upon commencement of the winding up of the Partnership in accordance with Section 12.02. All such Capital Contributions made by Members and Economic Interest Owners pursuant Any amount which would otherwise have been available to this Section 6.3, make distributions from the Partnership that is applied to any Partner Loan shall be credited first to any interest then due on such Partner Loan, and the Capital Account balance of the Member or Economic Interest Owner making distribution shall be credited against the Capital Contributionoutstanding principal balance of such Partner Loan. A Member or Economic Interest Holder who was not The exercise of the right to make a Non-Contributing Person with respect Partner Loan shall be in addition to any such capital call shall not be deemed a Non- other rights or remedies that the Contributing Person (and shall not relinquish any Voting Rights) by reason of such Member Partner may have under this Agreement or Economic Interest Owner choosing not to participate at law or in additional contributions to make up for the share not contributed by equity arising from the Non-Contributing Person; provided, however, that if Partner's (i) failure to make the Members required cash contribution or Economic Interest Owners which elect (ii) default in any other obligation to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such funds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all of the Members and Economic Interest Owners pursuant to the terms of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person with respect to such new capital call for purposes hereofpay money.

FAILURE TO CONTRIBUTE. (a) If by the required date under any approved Cash Notice, a Member or Economic Interest Owner (a "the “Non-Contributing Person"Member”) fails shall fail to contribute pay all or any part of its Requested Amount, the other Member or Members (each, a “Contributing Member”) (i) may pay to the Company as a Contribution the portion of the amount of the additional Capital Contribution called by the Members in accordance with Section 6.2 above, then the following shall occur: (i) the Company shall have the right to obtain the additional Capital Contribution Requested Amount not made paid by the Non-Contributing Person from Member (the other Members and Economic Interest Owners; “Deficiency”), as provided in subsection (b) below, (ii) may advance directly to the Non- Company the Deficiency as a recourse loan to the Company, as provided in subsection (c) below or (iii) may treat the Non-Contributing Person Member’s failure to contribute as a default under this Agreement (and as a Terminating Event as to the Non-Contributing Member). If there is more than one Contributing Member, the payment or advance of the Deficiency described above shall relinquish all be proportionate to each such Member’s Proportionate Share, provided that if any Contributing Member does not elect to pay or advance its full share of its Voting Rightsthe Deficiency pursuant to clause (i) or (ii) above, if anysuch Contributing Member shall be treated as a Non-Contributing Member with respect to such share of the Deficiency and the other Contributing Member or Members may pay or advance the additional portion of the Deficiency pursuant to clause (i) or (ii) above. Subject to Section 6.2, unless and until it has made its Cure Contribution the remedies set forth in clauses (as defined belowi), (ii) in full; and (iii) shall be the Company and the other Members and Economic Interest Owners shall have all other rights set forth in this Section 6.3. Thereupon, the other Members and Economic Interest Owners shall have the right, but not the obligation, to contribute on a pro rata basis determined with reference to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion exclusive remedies of the Contributing Member or Members for a Non-Contributing Member’s failure to pay or advance additional Capital Contribution not contributed capital as required by this Agreement; if the Contributing Members avail themselves of either of the remedies in clauses (i) or (ii) above, the Non-Contributing PersonMember’s failure shall not otherwise be treated as a default under this Agreement. If there is more than one Contributing Member, and each such Member the election to proceed under clause (i) or Economic Interest Owner clause (ii) above shall deliver to require the Company such amount not later than ten (10) days following the expiration unanimous decision of the thirty (30) day period referenced above. All such Capital Contributions made by Members and Economic Interest Owners pursuant to this Section 6.3, shall be credited to Contributing Members; in the Capital Account of the Member or Economic Interest Owner making the Capital Contribution. A Member or Economic Interest Holder who was not a Non-Contributing Person with respect to any such capital call shall not be deemed a Non- Contributing Person (and shall not relinquish any Voting Rights) by reason absence of such Member or Economic Interest Owner choosing not to participate in additional contributions to make up for unanimity, the share not contributed by the Non-Contributing Person; provided, however, that if the Members or Economic Interest Owners which elect to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such funds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all of the Members and Economic Interest Owners pursuant to the terms of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call shall proceed under clause (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person with respect to such new capital call for purposes hereofii).

FAILURE TO CONTRIBUTE. (a) If any Member or Economic Interest Owner (a the "Non-Contributing PersonMember") fails to contribute make an Additional Property Acquisition Contribution or an Additional Capital Contribution within the specified time as provided in a Final Acquisition Proposal or a Capital Contribution Notice (in either case, a "Deficiency"), then the other Member (i.e., the Member other than the Non-Contributing Member) (the "Contributing Member") may, in its sole and absolute discretion within thirty (30) days after the date the Deficiency was required to be contributed, elect to either (i) withdraw its share of such Additional Property Acquisition Contribution or Additional Capital Contribution, as the case may be, in which event the applicable Final Acquisition Proposal or Capital Contribution Notice shall be deemed cancelled and the Contributing Member's contribution shall be refunded to it, or (ii) pursuant to Section 8.5(b) below, lend to the Company the entire amount of such Additional Property Acquisition Contribution or Additional Capital Contribution (the "Member Loan Option"). If the Contributing Member elects to exercise the Member Loan Option, then the amount previously advanced by the Contributing Member to the Company shall be treated as a portion of the Member Loan described in Section 8.5(b) below. If the Contributing Member fails, within such thirty (30) day period, to withdraw its portion of the amount Additional Property Acquisition Contribution or Additional Capital Contribution or fund the Deficiency to the Company in exercise of the additional Capital Contribution called by the Members in accordance with Section 6.2 aboveMember Loan Option, then the following Contributing Member shall occur: be deemed to have elected to proceed under clause (i) above and the Company shall promptly return to the Contributing Member its share of such Additional Property Acquisition Contribution or Additional Capital Contribution, as applicable. In addition, in the event the Contributing Member elects to withdraw its portion of an Additional Property Acquisition Contribution with the result that the proposed acquisition of a Target Property is terminated, the Non-Contributing Member shall promptly pay or reimburse all Pursuit Costs and any forfeited exxxxxx money incurred by the Company or the Contributing Member in connection with the proposed acquisition and subsequent failure to acquire such Target Property, and shall not be entitled to reimbursement from the Company for any such costs to the extent incurred by such Non-Contributing Member. Until such time as such amounts have the right to obtain the additional Capital Contribution not made been paid in full by the Non-Contributing Person from the other Members and Economic Interest Owners; (ii) the Non- Contributing Person shall relinquish Member all of its Voting Rights, if any, unless and until it has made its Cure Contribution (as defined below) in full; and (iii) the Company and the other Members and Economic Interest Owners shall have all other rights set forth in distributions pursuant to this Section 6.3. Thereupon, the other Members and Economic Interest Owners shall have the right, but not the obligation, Agreement that would otherwise be paid to contribute on a pro rata basis determined with reference to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion of the additional Capital Contribution not contributed by the Non-Contributing Person, and each such Member or Economic Interest Owner shall deliver instead be paid to the Company such amount not later than ten (10) days following or the expiration of the thirty (30) day period referenced above. All such Capital Contributions made by Members and Economic Interest Owners pursuant to this Section 6.3Contributing Member, shall be credited to the Capital Account of the Member or Economic Interest Owner making the Capital Contribution. A Member or Economic Interest Holder who was not a Non-Contributing Person with respect to any such capital call shall not be deemed a Non- Contributing Person (and shall not relinquish any Voting Rights) by reason as applicable, in payment of such Member or Economic Interest Owner choosing not to participate in additional contributions to make up for the share not contributed by obligation on behalf of the Non-Contributing Person; provided, however, that if the Members or Economic Interest Owners which elect to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such funds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all of the Members and Economic Interest Owners pursuant to the terms of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person with respect to such new capital call for purposes hereofMember.