Common use of Failure to Make Contributions Clause in Contracts

Failure to Make Contributions. If a Member fails to timely contribute all or any portion of an Additional Capital Contribution (such Member, a “Non-Funding Member”) and such default is not cured within 10 days notice of the date such Additional Capital Contribution was due, then the other Members shall have the option, in proportion to their Capital Sharing Ratios or in such other percentages as they may agree (the “Funding Members”) to advance that portion of the Additional Capital Contribution that the Non-Funding Member has failed to timely contribute (a) as an Additional Capital Contribution by such Funding Members, with a corresponding dilution to the Non-Funding Member’s Capital Sharing Ratio (such dilution to be on a 1.25:1 basis), or (b) as a loan (each, a “Member Loan”) in accordance with the provisions of this Article. Any amounts funded by a Funding Member on behalf of a Non-Funding Member as a Member Loan shall be made directly to the Company, but shall be treated as a non-recourse (except to the extent of the Non-Funding Member’s Interest) demand loan made by the Funding Member to the Non-Funding Member, bearing interest at the Interest Rate, and a Capital Contribution of the amount of such loan from the Non-Funding Member to the Company. Any such non-recourse loan shall be repaid in full directly by the Company on behalf of the Non-Funding Member to the Funding Member from Net Cash Flow and Capital Proceeds otherwise distributable to the Non-Funding Member under Article 8 prior to any amount being distributed to such Non-Funding Member. Amounts paid directly by the Company to the Funding Member on account of a Member Loan shall be deemed distributions to the Non-Funding Member. Any Amounts used to repay such Member Loan shall be applied first to accrued interest therein and then to repay principal of such Member Loan.

Failure to Make Contributions. If a Member fails to timely contribute all or make its entire share of any portion of an Additional Capital Contribution, Supplemental Capital Contribution or Preferred Capital Contribution payment required under Section 2.3 and if the other Member (such Member, a “Non-Funding Defaulting Member”) and such default is not cured within 10 days notice has, if applicable, made the Capital Contributions required of the it to date such Additional Capital Contribution was dueunder Section 2.3, then the other Non-Defaulting Member may give written notice (a “Default Notice”) to the Member failing to make the required contribution (“Defaulting Member”), setting forth the amount of the delinquent Capital Contributions (the “Deficit Amount”). If the Deficit Amount remains unfunded by the Defaulting Member for more than ten (10) days following a Default Notice, then without further notice or action until the Default is cured (i) distributions to the Members shall be made in accordance with Section 3.2, (ii) the Non-Defaulting Member’s obligation to make further Capital Contributions shall be terminated, and (iii) the Non-Defaulting Member shall have the optionright, in proportion but not the obligation to their make further Capital Sharing Ratios or in such other percentages as they may agree (Contributions from time to time required to continue the “Funding Members”) to advance that portion Business Activities of the Additional Capital Contribution that Company, which aggregate amounts, together with any contribution made by the Non-Funding Defaulting Member has pursuant to the Contribution Notice the Defaulting Member failed to timely fund, shall be designated Priority Preferred Capital Contributions. The Non-Defaulting Member’s remedies with respect to a Defaulting Member’s failure to contribute (a) as an Additional Capital Contribution by such Funding Membersa Deficit Amount are limited to the consequences specified hereinabove, with a corresponding dilution to including the Non-Funding Defaulting Member’s right to make Priority Preferred Capital Sharing Ratio (such dilution Contributions, and to be on the remedy specified in Section 7.5. This limitation is not intended to limit the rights of a 1.25:1 basis), Member or (b) as a loan (each, a “Member Loan”) in accordance with an Affiliate thereof to pursue any remedies provided under separate guaranties or assurances whether or not related to this Agreement. In the provisions of this Article. Any amounts funded by a Funding Member on behalf of event a Non-Funding Defaulting Member as receives a payment under a separate guaranty reimbursing the Non-Defaulting Member Loan shall for the contribution of a Deficit Amount with interest, over and above all costs and expenses of collection under such guaranty, such payment will be made directly applied to the CompanyDefaulting Member’s Additional Capital Contributions, but shall be treated Supplemental Capital Contributions or Preferred Capital Contributions, as a non-recourse (except to appropriate, and credited toward the extent payment of the Non-Funding Defaulting Member’s Interest) demand loan made by the Funding Member to the Non-Funding Member, bearing interest at the Interest Rate, and a Priority Preferred Capital Contribution of the amount of such loan from the Non-Funding Member to the Company. Any such non-recourse loan shall be repaid in full directly by the Company on behalf of the Non-Funding Member to the Funding Member from Net Cash Flow and Capital Proceeds otherwise distributable to the Non-Funding Member under Article 8 prior to any amount being distributed to such Non-Funding Member. Amounts paid directly by the Company to the Funding Member on account of a Member Loan shall be deemed distributions to the Non-Funding Member. Any Amounts used to repay such Member Loan shall be applied first to accrued interest therein and then to repay principal of such Member LoanReturn.

Failure to Make Contributions. If a Member fails to timely contribute all or make its entire share of any portion of an Additional Capital Contribution, Supplemental Capital Contribution or Preferred Capital Contribution payment required under Section 2.3 and if the other Member (such Member, a “Non-Funding Defaulting Member”) and such default is not cured within 10 days notice has, if applicable, made the Capital Contributions required of the it to date such Additional Capital Contribution was dueunder Section 2.3, then the other Non-Defaulting Member may give written notice (a “Default Notice”) to the Member failing to make the required contribution (“Defaulting Member”), setting forth the amount of the delinquent Capital Contributions (the “Deficit Amount”). If the Deficit Amount remains unfunded by the Defaulting Member for more than ten (10) days following a Default Notice, then without further notice or action until the Default is cured (i) the Defaulting Member shall become a nonvoting Member of the Company, (ii) the Executive Committee shall thereafter consist of two Representatives appointed by the Non-Defaulting Member and one Representative appointed by the Defaulting Member, (iii) the Non-Defaulting Member shall be the sole Managing Member, (iv) distributions to the Members shall be made in accordance with Section 3.2, (v) the Non-Defaulting Member’s obligation to make further Capital Contributions shall be terminated, and (vi) the Non-Defaulting Member shall have the optionright, in proportion but not the obligation to their make further Capital Sharing Ratios or in such other percentages as they may agree (Contributions from time to time required to continue the “Funding Members”) to advance that portion Business Activities of the Additional Capital Contribution that Company, which aggregate amounts, together with any contribution made by the Non-Funding Defaulting Member has pursuant to the Contribution Notice the Defaulting Member failed to timely fund, shall be designated Priority Preferred Capital Contributions. The Non-Defaulting Member’s remedies with respect to a Defaulting Member’s failure to contribute (a) as an Additional Capital Contribution by such Funding Membersa Deficit Amount are limited to the consequences specified hereinabove, with a corresponding dilution to including the Non-Funding Defaulting Member’s right to make Priority Preferred Capital Sharing Ratio (such dilution Contributions, and to be on the remedy specified in Section 7.5. This limitation is not intended to limit the rights of a 1.25:1 basis), Member or (b) as a loan (each, a “Member Loan”) in accordance with an Affiliate thereof to pursue any remedies provided under separate guaranties or assurances whether or not related to this Agreement. In the provisions of this Article. Any amounts funded by a Funding Member on behalf of event a Non-Funding Defaulting Member as receives a payment under a separate guaranty reimbursing the Non-Defaulting Member Loan shall for the contribution of a Deficit Amount with interest, over and above all costs and expenses of collection under such guaranty, such payment will be made directly applied to the CompanyDefaulting Member’s Additional Capital Contributions, but shall be treated Supplemental Capital Contributions or Preferred Capital Contributions, as a non-recourse (except to appropriate, and credited toward the extent payment of the Non-Funding Defaulting Member’s Interest) demand loan made by the Funding Member to the Non-Funding Member, bearing interest at the Interest Rate, and a Priority Preferred Capital Contribution of the amount of such loan from the Non-Funding Member to the Company. Any such non-recourse loan shall be repaid in full directly by the Company on behalf of the Non-Funding Member to the Funding Member from Net Cash Flow and Capital Proceeds otherwise distributable to the Non-Funding Member under Article 8 prior to any amount being distributed to such Non-Funding Member. Amounts paid directly by the Company to the Funding Member on account of a Member Loan shall be deemed distributions to the Non-Funding Member. Any Amounts used to repay such Member Loan shall be applied first to accrued interest therein and then to repay principal of such Member LoanReturn.