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. (b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 5 contracts
Sources: Letter Agreement (Bioceres S.A.), Letter Agreement (Bioceres S.A.), Letter Agreement (Bioceres S.A.)
Additional Capital Contributions. (a) From time to timeBy no later than the tenth (10th) day (or if such date is not a Business Day, then the immediately preceding Business Day) of each calendar month, commencing with the first month after Side Letter Effective Date, the Management CommitteeBoard shall determine the amount of Additional Capital Contributions required to be made by each Member to fund Company expenses anticipated for such month (which shall in any event include funds necessary to make Call Option Payments and funds necessary for the Company and its Subsidiaries to perform obligations under matters approved as a Material Decision or Fundamental Decision as the case may be) and Administrative Member shall provide notice thereof in substantially the form attached as Exhibit C (each, subject a “Capital Call Notice”) to approval by each Member (each, a Supermajority in Interest “Capital Call”). The Capital Call Notice shall specify (i) (x) the minimum aggregate amount of the Members, may determine that Additional Capital Contributions in addition required to be made by of all Members pursuant to such Capital Call, and (y) the Initial Members’ prior maximum aggregate amount of the Additional Capital Contributions are needed that may be required to enable be made by all of the Company Members pursuant to conduct its business such Capital Call, which maximum aggregate amount shall not be greater than one hundred and ten percent (110%) of the minimum aggregate amount specified in such Capital Call Notice, and (z) and the pro rata portion thereof required to be contributed by each Member in accordance with the Work Plan. On making such a determinationrespective Capital Contribution Percentage, 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 Additional Capital Contributions are neededto be made (which shall be the twenty-fifth (25th) day (or if such date is not a Business Day, then the immediately preceding Business Day) of such calendar month, and (iii) the account details for the bank account to which such Additional Capital Contributions are to be paid. The notice Not later than one (1) Business Day prior to the date on which such Additional Capital Contributions are to be made by the Members (as designated in the Capital Call Notice), the Board shall determine the exact aggregate amount of the Additional Capital Contributions to be made by of all Members pursuant to such Capital Call (which aggregate amount may not be less than the minimum amount or greater than the maximum amount set forth in the Capital Call Notice), and Administrative Member shall deliver written notice to each Member (each, a “Supplemental Capital Call Notice”) specifying such exact aggregate amount of additional the Additional Capital Contributions to be made by of all Members pursuant to such Capital Call (which aggregate amount may not be less than the minimum amount or greater than the maximum amount set forth in the Capital Call Notice) and the pro rata portion thereof required to be contributed by each Member in accordance with their respective Capital Commitment Percentages, which shall be calculated as set forth below. In the event of a Capital Call, each Member shall be required to make, no later than the applicable date designated in the Capital Call Notice, an Additional Capital Contribution neededto the Company by wire transfer of funds to the specified account in an amount equal to the product of (A) such Member’s Capital Contribution Percentage multiplied by (B) the aggregate amount of the Additional Capital Contributions to be made pursuant to such Capital Call as set forth in the Supplemental Capital Call Notice; provided that, notwithstanding anything to the purpose for which it is neededcontrary set forth herein, the date by other than Additional Capital Contributions required to fund Call Option Payments approved as a Fundamental Decision pursuant to Section 8.3(a)(vi), which the Members may contribute such additional amounts, and a reasonably detailed assessment shall be obligated to fund even in excess of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion of the Management Committee, appropriate in lieu of a their respective Capital Contribution. Except for services as contemplated by an applicable Work PlanContribution Caps, no Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall any portion of (which may be given the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment all) of an additional any Additional Capital Contribution pursuant to this Section 3.2(a), a Capital Call to the Company shall issue additional Units extent that it would result in the amount of Capital Contributions (excluding Superiority Contributions) made by such Member to each contributing exceed such 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 ’s 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 Cap.
(b) If The obligations of the Members to fund Additional Capital Contributions are several (and not joint), and (i) no Member shall be responsible for any other Member’s failure to fund any Additional Capital Contribution as so required and (ii) it shall be a condition precedent to the funding of an Additional Capital Contribution by a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify that each other Member (each, a “Contributing Member”) in writing funds its required portion of the total amount of Noncontributing Member Capital Contributions not made (the “such Additional Capital Shortfall”)Contributions. In the event any Member fails to fund an Additional Capital Contribution in accordance with Section 9.3(a) within the time period required therefor, and shall specify a number of days within which each Contributing Member may make an additional the other Members have funded their required Additional Capital Contribution, which shall not be less than an amount bearing the same ratio then each other Member may elect (by written notice to the Company) to require the Company to return the amount of Additional Capital Shortfall as the Contributing funded by such Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 5 contracts
Sources: Limited Liability Company Agreement (Figure Technology Solutions, Inc.), Limited Liability Company Agreement (FT Intermediate, Inc.), Limited Liability Company Agreement (FT Intermediate, Inc.)
Additional Capital Contributions. If Additional Capital Contributions (aherein so called) From time to timeare required for any expenditure of the Partnership, the Management Committee, subject General Partner shall have the right to approval by a Supermajority in Interest of request the Members, may determine that Partners to make Additional Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business (pro rata in accordance with each Partner’s Sharing Percentage) to the Work PlanPartnership in excess of their initial Capital Contributions. On making If the Managing General Partner makes such a determinationrequest, no Partner shall be required to make such Additional Capital Contribution, provided that if any Partner elects not to make the Additional Capital Contribution (a “Noncontributing Partner”), the Management Committee other Partners (the “Contributing Partners”) shall give written notice have the right to contribute to the Partnership the amount of such determination cash that the Noncontributing Partner or Partners failed to all Members at least contribute. The Partners shall have thirty (30) days before from the date on General Partner’s request in which to elect to make or not make such additional Additional Capital Contributions are neededContributions. The notice Effective as of the end of such thirty (30) day period, the Partners’ Sharing Percentages shall set forth be adjusted, as follows: Each Partner’s Sharing Percentage thereafter shall be equal to a fraction (converted to a percentage), the numerator of which is equal to such Partner’s “Base Amount” and the denominator of which is equal to the sum of the Base Amounts of all the Partners. For purposes hereof, each Partner’s Base Amount shall be equal to the sum of (1) the amount of additional Capital Contribution needed, cash contributed to the purpose for which it is needed, the date Partnership 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, Partner in the opinion respect of the Management Committee, appropriate in lieu current call for capital (including amounts contributed on behalf 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(aany Noncontributing Partner or Partners), 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 plus (i2) the Company Valuation product of (x) the Partner’s Sharing Percentage (as in effect immediately before the capital call in question) multiplied by (iiy) 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 Partnership” of the definition date of Gross Asset Value in Appendix 1 attached hereto, and Capital Accounts will reflect such new Gross Asset Valuecapital call. Following the issuance For purposes of additional Units, if necessarythis Section 4.2, the Management Committee shall re-compute the Percentage Interests “Value of the Members based Partnership” shall mean the product of the Partnership’s “EBITDAR” (hereinafter defined) for the most recently completed fiscal year multiplied by five (5), less any Partnership long term debt (including any capitalized leases and the current portion of long term debt), all as determined in accordance with generally accepted accounting principles using the accrual method of accounting applied on a basis consistent with the total preceding period (using the Partnership’s current accounting policies). Any questions with respect to accounting procedures or valuation not controlled by this Agreement shall be resolved by the independent accountants employed by the General Partner on behalf of the Partnership. “EBITDAR” shall mean the earnings for the Partnership before deductions for interest, taxes, depreciation, amortization and rental payments, but shall exclude nonrecurring and extraordinary items. The number of Units held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect Partner shall be adjusted automatically to which such Member has an option under Section 3.2(a) at the time specified reflect any change in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblePartners’ Sharing Percentages under this section.
Appears in 3 contracts
Sources: Limited Partnership Agreement (PHC Hospitals, LLC), Limited Partnership Agreement (PHC Hospitals, LLC), Limited Partnership Agreement (PHC Hospitals, LLC)
Additional Capital Contributions. (a) From time Except for Capital Contributions from each Member in proportion to time, the Management Committee, subject to approval by a Supermajority such Member’s then outstanding Percentage Interest in Interest respect of the Members, may determine that Capital Contributions in addition to General Partner’s Percentage for equity issuances by 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 amountsMLP, 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 Planequity issuances approved pursuant to Section 7.9(b)(ii), 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 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.
(b) Subject to the approval of a Majority in Interest pursuant to Section 7.9, the Company may offer additional Membership Interests to any Person with the approval of the Board. Such approval of the Majority in Interest shall also include their approval of any related valuations of Gross Asset Value by the Board and, if such Majority in Interest approves such issuance without approving such valuation, Gross Asset Value shall be determined by a third Person familiar with the valuation of such transactions selected by the Majority in Interest not later than ten (10) days after their approval of such issuance or, if the Majority in Interest fails to so select a third Person, then such third Person will be selected in accordance with the rules and procedures of the American Arbitration Association in Houston, Texas. If a any additional Capital Contributions are made by Members but not in proportion to their respective Percentage Interests, the Percentage Interest of each Member does not make an shall be adjusted such that each Member’s revised Percentage Interest determined immediately following each such additional Capital Contribution with respect shall be equal to a fraction (i) the numerator of which such Member has an option under Section 3.2(ais the sum of (A) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing positive Capital Account balance of the total amount of Noncontributing Member determined immediately preceding the date such additional Capital Contributions not Contribution is made (such Capital Account to be computed by adjusting the book value for Capital Account purposes of each Company asset to equal its Gross Asset Value as of such date, as provided in subparagraph (b) of the definition herein of “Additional Capital ShortfallGross Asset Value”), and shall specify a number of days within which each Contributing Member may make an (B) such additional Capital Contribution, if any, made by such Member, and (ii) the denominator of which shall not be less than an amount bearing is the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all sum of the Contributing Members. If positive Capital Account balances immediately preceding the total amount of Additional date such additional Capital Shortfall Contribution is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make made plus additional Capital Contributions until of all Members on the Additional date of such additional Capital Shortfall is Contribution, including Capital Contributions of any new Members (in each case calculated as fully contributed as possibleprovided in (i) above). The names, addresses and Capital Contributions of the Members shall be reflected in the books and records of the Company.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Plains All American Pipeline Lp), Limited Liability Company Agreement (Plains All American Pipeline Lp), Limited Liability Company Agreement (Plains All American Pipeline Lp)
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) the number of Units outstanding immediately prior right to such call for 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 after the issuance of the additional Units and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio capital contributions to the amount of Additional Capital Shortfall LLC except as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleexpressly provided above and in Article 3.
Appears in 3 contracts
Sources: 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 If, at any time or from time to time, the Management CommitteeBoard determines, subject to approval by a Supermajority in Interest good faith, that the Company requires additional amounts of cash for the conduct of the MembersCompany’s business or operations or the satisfaction of Company obligations, may determine or if the Dealer of Record notifies the Board that the Company needs additional capital to satisfy the Net Working Capital Requirements (“Net Working Capital Shortfall”), then the Board may, and in the case of a Net Working Capital Shortfall will, secure additional debt and/or other alternative funding sources or shall call upon the Members to make additional Capital Contributions in addition of cash (a “Capital Call”) to the Initial Members’ prior fund such Net Working Capital Contributions are needed Shortfall or other Company business, operations or obligations by delivering to enable the Company to conduct its business each Member a written notice (a “Capital Shortfall Notice”). Each Member shall make a pro-rata additional Capital Contribution in accordance with that Member’s Percentage Interest according to the Work Plan. On making such a determinationCapital Shortfall Notice; provided, however, that 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 failure to make an additional Capital Contribution. However, except as contemplated Contribution shall not constitute a breach 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, but rather shall result in the consequences provided for in sub-part (b) below. Upon payment Notwithstanding anything to the contrary, in the event of an additional a Net Working Capital Contribution pursuant to this Section 3.2(a)Shortfall, the Company shall issue not (and shall not permit any Subsidiary to) incur any additional Units debt if and to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an the extent such additional Unit issued pursuant to this Section 3.2(a) shall be determined debt is prohibited by dividing (i) the Manufacturer or will cause the Company Valuation by (ii) or an applicable Subsidiary to violate 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 outstandingManufacturer Rules.
(b) If a Member does not fails to make an additional Capital Contribution with respect to which such Member has an option required under Section 3.2(a) at a Capital Shortfall Notice, any or all of the time specified in the notice (a “Noncontributing Member”), the Management Committee shallremaining Members may, within five (5) days Business Days after said failure. notify each other Member (each, a “Contributing Member”) in writing expiration of the total time period for making such contribution, elect to lend to such Member the amount of Noncontributing such required capital, pro rata based on the Percentage Interests of the remaining Members who so elect. In such event, the Percentage Interests of the Members shall remain unchanged, but the loan shall be evidenced by a promissory note (at the floating prime rate as determined from time to time by the Company’s then principal bank) and shall be secured by the borrowing Member’s rights to distribution hereunder, and the Members are authorized to apply any and all distributions to a Member who has borrowed funds from another Member pursuant to this Section to the repayment of such loan. The proceeds of such a loan shall be paid to the Company as an additional Capital Contributions Contribution for the borrowing Member. To the extent that none of the remaining Members desire to lend such funds or if such Member gives notice within said five (5) Business Day period to the remaining Members that such Member does not made desire to borrow funds from the remaining Members (or otherwise refuses to execute the “Additional Capital Shortfall”referenced promissory note), and all but not less than all of the remaining Members may elect by written notice to all Members within five (5) Business Days after the loan election to contribute the balance of such required capital in proportions agreed to by the remaining Members or, in the event that such remaining Members fail to so agree, in proportion to their Percentage Interests. In such event, the Percentage Interests of the Members shall specify be adjusted to take into consideration the additional capital contribution or portion thereof made. In the event that the remaining Members fail to elect to make the loan to or contribute capital for a number of days within which each Contributing Member may who fails to make an additional Capital Contribution, which the Percentage Interests of the Members shall not be less than an amount bearing adjusted to take into consideration the same ratio additional Capital Contributions made pursuant to this Section 5.5. If, as a result of any adjustment to the amount Percentage Interests of Additional Capital Shortfall as the Contributing Members under this subsection, (i) the LMP Member’s Percentage Interest bears is reduced to an amount less than 50%, the combined LMP Member for so long as the LMP Member’s Percentage Interests of all Interest is less than 50% shall be permitted to appoint only one (1) Manager pursuant to Section 8.3(a)(i) and (ii) the AAG Member’s Percentage Interest is increased to an amount equal to or more than 50%, the AAG Member for so long as the AAG Member’s Percentage Interest is greater than 50% shall be permitted to appoint two (2) Managers pursuant to Section 8.3(a)(ii); provided during any period in which both the LMP Member and the AAG Member have a Percentage Interest equal to 50%, each of the Contributing Members. If LMP Member and the total amount AAG Member shall be entitled to appoint two (2) Managers pursuant to Section 8.3(a)(i) or 8.3(a)(ii), as applicable.
(c) Each of Additional Capital Shortfall is not so contributedthe Company and each Member acknowledges and agrees that, as of the Management Committee may use Effective Date, no Member has made any reasonable method representation, commitment or agreement to provide Members or assist the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCompany in obtaining any financing, investment or other assistance.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.), Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.), Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.)
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.
(b) If So long as the Joint Development Agreement is in effect, any payments required to be made by a Member does not make an additional under the Joint Development Agreement on behalf of it or the Company will be deemed to be a Capital Contribution with respect to which the Company by such Member has an option under Section 3.2(a) at and thereafter such amounts will be deemed to have been paid by the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio Company to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleJoint Operations Account.
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement (Exco Resources Inc)
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 (10) 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 (10) 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 this Section 3.2(a)the Company, the Company shall issue amount and form of the 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) Capital Contribution 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 Fair Market Value thereof, and shall result in a corresponding increase in such Member’s Capital Account, as determined by the Board of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingManagers.
(b) If 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 5.4 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 does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(ain its capacity as a creditor) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount Company (and no such creditor shall be a third-party beneficiary of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”this Agreement), and no Member shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio have any duty or obligation to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all any creditor of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity Company to make any additional Capital Contributions until or to provide any additional financing or to cause any Member to consent to the Additional making of additional Capital Shortfall is as fully contributed as possibleContributions or to the provision of additional financing.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (CF Industries Holdings, Inc.), Limited Liability Company Agreement (CHS Inc)
Additional Capital Contributions. (a) From time Each Member shall make its proportionate share, based on. its respective Ownership Percentage, of such Additional Capital Contributions (i) as the Management Committee shall determine to time, be necessary (other than with respect to Additional Capital Contributions required pursuant to clause (ii) below) or (ii) as required to meet such Member's obligations under the Equity Contribution Agreement. The Management Committee, subject in the case of Additional Capital Contributions pursuant to approval by a Supermajority in Interest clause (i) hereof, shall give the Members reasonable prior notice of the Members, may determine that 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 in addition pursuant to clause (ii) above. When determining the Initial Members’ number of days of prior notice for Additional Capital Contributions are needed made pursuant to enable the Company to conduct its business in accordance with the Work Plan. On making such a determinationclause (i) above, the Management Committee shall give written notice may consider the needs 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 Company for the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amountscontribution, and in no event shall such prior notice need to be longer than 30 days. If 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 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 noncontributing Member hereby consents to the Company application to it of the remedies provided in Section 5.2(c), 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 maybe 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.
(b) All Additional Capital Contributions shall be Tendered and made on or before the respective Capital Call Date. Upon the making of Additional Capital Contributions, each Member's respective Capital Account shall be adjusted appropriately as provided herein. Absent the approval of the Management Committee or as otherwise provided in this Article V, all Additional Capital Contributions made by the Members shall be made pro rata based upon their Ownership Percentages, and no Additional Capital Contribution shall result in any modification to the Ownership Percentages of the Members.
(c) In addition to the rights provided under Section 5.2(e), if a Member (the "Non-Contributing Member") does not Tender, on or before the Capital Call Date, an Additional Capital Contribution it is required to make pursuant to Section 5.2(a), each Member who has Tendered its related Additional Capital Contribution (each, a "Contributing Member"), shall have the right, but not the obligation, exercisable within 180 days after the Capital Call Date, to do any or all of the following: (i) refuse to make or withdraw all or part of such Contributing Member's Additional Capital Contribution (and such withdrawn Additional Capital Contribution shall be deemed to have never been made), (ii) make a Capital Contribution Loan in the amount of the Contributing Member's Additional Capital Contribution, and (iii) make a Capital Contribution Loan for all or part of the Non-Contributing Member's Additional Capital Contribution. A "Capital Contribution Loan" is a Member Loan for all or part of an Additional Capital Contribution, (A) that shall have a term determined by the Member making the Loan, which shall be at least one year, (B) that shall bear interest at an interest rate equal to 15% per annum, (C) that shall be mandatorily prepaid by the Company out of Distributable Cash before any distributions are made to the Members pursuant to Section 6.1, (D) all or any portion of which (including accrued and unpaid interest) shall be convertible, at the option of the Contributing Member, at any time and from time to time during the first year of the term of such Capital Contribution Loan, into Preferred Interests with an Unreturned Capital Balance equal to the amount of the outstanding principal and accrued and unpaid interest so converted; provided, however, that such conversion shall not cause an Adverse QF Event or an Adverse PUHCA Event, (E) all or any portion of which shall be assignable pursuant to Section 5.2(e), and (F) which shall be represented by a promissory note substantially in the form of Exhibit C (a "Note"). Any such conversion to Preferred Interests shall be effective immediately upon the giving of notice thereof by the Contributing Member (or any permitted assignee of such Capital Contribution Loan) to the Company and the Non-Contributing Member, which notice shall specify the amount of principal and interest so converted. The Company shall execute such Note and execute such other documents and instruments and take such further actions as are required by the Contributing Member to give effect to this Section 5.2(c). If more than one Contributing Member elects to make a Capital Contribution Loan, such Contributing Members shall be entitled to make such Loans in accordance with their Ownership Percentages.
(d) If a Member does not fails to make an additional Additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”)Contribution, the Management Committee shall, within five (5) days after said failure. notify each other Member (each, upon the vote of representatives of Members holding a “majority of the Ownership Percentage exclusive of the Ownership Percentage of the Non-Contributing Member”) may cancel the requested Additional Capital. Contribution at any time prior to the date any Capital Contribution Loans in writing respect of the total amount of Noncontributing Member such Additional Capital Contributions not made (the “are funded. If any capital call is cancelled after one or more Members has contributed an Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which such contributions shall not immediately be less than an amount bearing the same ratio returned to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If .
(e) Any Contributing Member shall be permitted to assign its rights and remedies under Section 5.2(c) and any Capital Contribution Loan and Note in respect thereof to any Person (including the total amount of Additional Capital Shortfall is right to convert such loan into a Preferred Interest); provided; however, that such assignment will not so contributed, result in an Adverse QF Event or an Adverse PUHCA Event for the Management Committee may use Company or any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleMember.
Appears in 2 contracts
Sources: LLC Agreement (MSW Energy Hudson LLC), LLC Agreement (Uae Ref Fuel Ii Corp)
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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Skechers Usa Inc), Limited Liability Company Agreement (Skechers Usa 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 Except as otherwise 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 Planthis Section 7.2, no Member shall be required to make an additional 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.
(b) If In the event the Cooperative, at any time after the Effective Date, seeks capital (“Additional Capital Contributions”) from the Members in excess of the amounts committed to be contributed pursuant to Schedule B, the following procedure shall be followed:
(i) the proposed Additional Capital Contribution must be approved by Members holding at least a Super Majority of the Percentage Interests at a meeting of the Members held prior to January 31 in the year in which such proposed Additional Capital Contribution will be needed;
(ii) each Member does not shall have thirty (30) days from the date of the Vote under paragraph (i) to advise the General Manager or Treasurer in writing of its intention to make an additional capital contribution and the maximum amount it is willing to contribute, subject to obtaining approval at an annual or special town meeting to be held in the town where such member is located;
(iii) upon the earlier of receiving written notices from all Members or the expiration of the thirty (30) day period, the Treasurer shall calculate the Capital Contribution with respect intended to which such be made by each Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of by dividing equally the total amount of Noncontributing additional capital required by the number of participating Members, subject to any maximum contribution limits specified by Members in their written notices;
(iv) the Treasurer shall immediately notify each Member by facsimile, telephone, or electronic mail and by mail of the amount each Member is to contribute;
(v) each participating Member will thereafter have a period of three (3) calendar months to obtain approval at its respective town meeting;
(vi) subject to obtaining approval at its respective town meeting, each Member shall make the Capital Contributions Contribution in accordance with any schedule approved by the Members, but in any event, no later than thirty (30) days following the date each Member has received approval at its respective town meeting; and
(vii) in the event the full amount determined under paragraph 7.2(b)(i) is not made (contributed by the “Members, the Members shall meet to determine what actions are necessary to deal with the deficiency. In accordance with Section 8.1(c), the Members’ respective Percentage Interests shall be recalculated by the Cooperative immediately after any Capital Contribution or any Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Operating Agreement, Operating Agreement
Additional Capital Contributions. 6.2.1 Except as otherwise provided herein, no Member shall be obligated to make any additional contributions of capital (aall contributions of capital to the Company, including the Initial Capital Contributions, "CAPITAL CONTRIBUTIONS") From time to timethe Company (including upon dissolution and liquidation of the Company). Upon the making of any additional Capital Contributions, each Member's Percentage Interest shall thereafter be equal to the ratio, expressed as a percentage, equal to the aggregate Capital Contributions made by such Member divided by the aggregate Capital Contributions made by all Members to the Company.
6.2.2 The Managing Member shall monitor the finances of the Company in an attempt to determine whether or not, and when, the Management Committee, subject to approval by a Supermajority in Interest cash receipts of the MembersCompany are insufficient to pay all costs and expenses of the Company (such costs and expenses, may determine that Capital Contributions in addition the "NECESSARY COSTS"). Prior to the Initial Members’ prior Capital Contributions are needed Managing Member contributing any capital to enable the Company to conduct its business in accordance with (other than the Work Plan. On making such a determinationManaging Member's Initial Capital Contribution), the Management Committee Managing Member shall give written notice issue capital calls to the Members to fund shortfalls related to the Company (the "CAPITAL CALL NOTICE"). Such Capital Call Notice shall set forth the amount of the required funds (the "REQUIRED FUNDS") and a list of Necessary Costs, and shall specify a date (the "CAPITAL CALL DUE DATE") for contribution of such determination funds. Upon receipt of the Capital Call Notice, the Non-Managing Member shall have the right, but not the obligation, to all Members fund its proportionate share (based on its respective Percentage Interest) of the total funds specified in the Capital Call Notice. The Capital Call Due Date shall be at least thirty (30) days before after receipt of the date on which such Capital Call Notice unless a shorter time is agreed to by the Non-Managing Member. All 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 made by wire transfer of immediately available funds 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 account of the Company’s assets .
6.2.3 To the extent the Non-Managing Member elects not to fund its proportional share of the Required Funds, the Managing Member shall have the right, but not the obligation, to contribute the unfunded amount to the Company. Should the Managing Member elect to fund such amount, then the Members' Percentage Interests will be adjusted as described 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 outstandingsubsection 6.2.1.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Interstate Hotels Management Inc), Limited Liability Company Agreement (Interstate Hotels Corp)
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 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 capital 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made requested (the “Additional Capital ShortfallRequested Amount”), and shall specify a number of days within which each Contributing . A Member may make an additional Capital Contributionalso deliver a Funding Notice as provided in Section 4.15(c). Within ten (10) Business Days following the date of receipt of a Funding Notice, which each Member shall not be less than an amount bearing the same ratio pay to the amount Company as a Capital Contribution such Member’s Proportionate Share of the Additional Capital Shortfall as Requested Amount. Any funds advanced by the Contributing Member’s Percentage Interest bears Members to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method Company pursuant to provide Members the opportunity to make this Section constitute additional Capital Contributions until to the Additional Capital Shortfall is as fully contributed as possibleCompany.
Appears in 2 contracts
Sources: 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 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblein accordance with Section 6.6.
Appears in 2 contracts
Sources: Operating Agreement (Ada-Es Inc), Operating Agreement (Ada-Es Inc)
Additional Capital Contributions. (ai) From time Other than as the Management Board determines in its reasonable discretion is necessary to timepay reasonable third party (and not, for the avoidance of doubt, any Member’s or such Member’s Affiliates) costs and expenses incurred by the Company in carrying out its business not to exceed $2,500,000 per annum, including, without limitation, liability and other insurance premiums, expenses incurred in the preparation of reports to the Members and any third party legal, accounting and other professional fees and expenses, none of the Members shall have any further capital commitment with regard to the ongoing conduct of the business of the Company beyond their respective initial Capital Contributions; provided, that, no requirement to fund additional capital pursuant to this Section 2.2(b) shall apply to any Management Member.
(ii) If the Management Board determines in good faith that it is necessary or desirable for the Company to obtain additional Capital Contributions, subject to Section 2.2(b)(i), the Management Committee, subject Board may at any time and from time to approval by a Supermajority time request that each Class A Member make such additional Capital Contribution 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 cash pro rata in accordance with the Work Plan. On making percentage of Class A Units then Held by each such a determinationClass A Members and each Class A Member may elect to make such additional Capital Contribution (provided, that to the Management Committee shall give written notice of such determination to extent not all Class A Members at least thirty (30) days before the date on which make such additional Capital Contributions are neededup to their full pro rata portion, the Class A Members that do elect to make such additional Capital Contributions may elect to make additional Capital Contributions to satisfy the Company’s request for Capital Contributions up to their respective pro rata portion as between such Class A Members so contributing) and shall receive a number of additional Class A Units (with respect to each contributing Class A Member, in proportion to the Class A Units held by such Class A Member prior to the additional Capital Contribution) at a value per Class A Unit calculated to reflect the Management Board’s reasonable good faith determination of Fair Market Value for such Class A Units immediately prior to the Capital Contribution (the “Capital Call Valuation”) (and the Management Board may retain an independent valuation firm to make such determination) (the “Additional Units”). The notice Company shall set forth the amount of reflect any such additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, Contributions in its books and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, in the opinion records as promptly as practicable following receipt of the Management Committee, appropriate in lieu of a relevant Capital Contribution. Except for services as contemplated by an applicable Work PlanFor the avoidance of doubt, no Member shall be required a Class A Member’s decision to elect not 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 requested pursuant to this Section 3.2(a2.2(b), shall not result in any remedy, forfeiture, penalty or payment due or owed to the Company, such decision being a voluntary decision of each Class A Member.
(iii) Notwithstanding anything to the contrary, with respect to any request by the Management Board to make any additional Capital Contributions pursuant to Section 2.2(b)(ii) that are to be contributed to the Company on or prior to March 16, 2017, Trican may elect to require the Cerberus Funds, collectively, to contribute Trican’s respective share of such additional Capital Contributions (the “Trican Required Contribution”) and Trican shall receive from the Company all of the Additional Units issuable in connection with the Trican Required Contribution if such election is made; provided, that such Trican Required Contribution by the Cerberus Funds shall take the form of a one-year member loan, bearing interest at a rate of 15% per annum compounded quarterly, to the Company (the “Cerberus Contribution Loan”) and Trican shall be required to contribute to the Company the full amount of such Cerberus Contribution Loan (including accrued interest thereon) (the “Trican Repayment”) within 12 months of the date of such Cerberus Contribution Loan; provided, further, that: (i) if Trican so contributes the full amount of the Trican Repayment (including accrued interest thereon) to the Company within 12 months of the date of the Cerberus Contribution Loan, the Company shall issue additional Units distribute such amount (which shall include interest paid) to each contributing Memberthe applicable Cerberus Funds, with each new Unit being issued for its fair market value. The fair market value as designated by the Cerberus Representative, in satisfaction of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by Cerberus Contribution Loan; and (ii) if Trican does not so contribute the full amount of the Trican Repayment (including accrued interest thereon) to the Company within 12 months of the date of the Cerberus Contribution Loan, then the equivalent number of Class A 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 Capital Call Valuation for such Class A Units) Held by each Member after the issuance of the additional Units and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio Trican equal to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Trican Repayment (including accrued interest thereon) not so contributed to the combined Percentage Interests Company shall be automatically cancelled and forfeited and the same number of all Class A Units shall be issued to the applicable Cerberus Funds, as designated by the Cerberus Representative, in satisfaction of the Contributing MembersTrican Repayment (and accrued interest thereon). If In the total event that a Sale-of-the-Company or other dissolution or liquidation event of the Company occurs prior to the full Trican Repayment (including accrued interest thereon), or satisfaction thereof in accordance with this Section 2.2(b), then any related proceeds that would otherwise be distributable to Trican in connection therewith shall be distributed to the applicable Cerberus Funds, as designated by the Cerberus Representative, unless and until the full amount of Additional Capital Shortfall is not so contributedthe Cerberus Contribution Loan (including accrued interest thereon) has been repaid.
(iv) In the event of a Trican Required Contribution by the Cerberus Funds, the Management Committee may use any reasonable method ▇▇▇▇▇ Parties shall have the opportunity, but not the obligation to provide Members participate in such Trican Required Contribution by contributing up to their pro rata portion (as determined in proportion to the opportunity to make additional Capital Contributions until aggregate amount of Class A Units Held by the Additional Capital Shortfall is as fully contributed as possibleCerberus Funds and the ▇▇▇▇▇ Parties) of the amount of the Cerberus Contribution Loan in exchange for their corresponding pro rata portion of the Trican Repayment (including interest thereon), in each case in accordance with the terms of Section 2.2(b)(iii).
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Keane Group, Inc.), Limited Liability Company Agreement (Keane Group, Inc.)
Additional Capital Contributions. (a) From time In addition to time, the Management Committee, subject to approval by a Supermajority in Interest Initial Capital Contributions of the Members, may determine that the Members shall make additional Capital Contributions in addition the form and amounts, determined by the Operating Member and Investor Member from time to time at Monthly Meetings, to the Initial Members’ prior extent reasonably necessary, to pay any operating, capital or other Company Expenses relating to the Business (such additional Capital Contributions are needed Contributions, the “Additional Capital Contributions”); provided, the operating, capital or other Company Expenses shall first be deducted from cash that would otherwise have been allocated and distributed, but not yet paid to enable the Company to conduct its business in accordance with Members and provided, further that any Additional Capital Contributions, other than Investor Allocated Expense and Fee Contributions, will be funded on a 51.0% (Operating Member)/49.0% (Investor Member) basis. Upon the Work Plan. On Operating Member and Investor Member making such a determinationdetermination for Additional Capital Contributions, the Management Committee Manager shall give deliver to the Members a written notice of the Company’s need for Additional Capital Contributions, which notice shall specify in reasonable detail (i) the purpose for such determination to all Members at least thirty Additional Capital Contributions, (30ii) days before the aggregate amount of such Additional Capital Contributions, (iii) each Member’s share of such aggregate amount of Additional Capital Contributions based upon such Member’s Percentage Interest, and (iv) the date (which date shall not be less than ten (10) Business Days from the date that such notice is given) on which such Additional Capital Contributions shall be required to be made by the Members. Notwithstanding anything herein to the contrary, upon the Company incurring DC REIT Fees and Expenses, Property Level Fees and/or LLC Level Fees, the Manager shall deliver to the Investor Member a written notice of the Company’s need for an additional Capital Contributions are needed. The Contribution from the Investor Member in the aggregate amount of DC REIT Fees and Expenses, Property Level Fees and LLC Level Fees incurred by the Company (“Investor Allocated Expense and Fee Contributions”),which notice shall set forth specify in reasonable detail (x) the aggregate amount of such Investor Allocated Expense and Fee Contributions, including specifically the amount of additional the DC REIT Fees and Expenses, Property Level Fees and LLC Level Fees and (y) the date (which date shall not be less than ten (10) Business Days from the date that such notice is given) on which such Investor Allocated Expense and Fee Contributions shall be required to be made by the Investor Member.
(b) If any Member shall fail to timely make, or notifies the other Member that it shall not make, all or any portion of any Additional Capital Contribution neededwhich such Member is obligated to make under Section 3.02(a), then such Member shall be deemed to be a “Non-Contributing Member”. The non-defaulting Member (the purpose for which it is needed“Contributing Member”) shall be entitled, but not obligated, to loan to the date Non-Contributing Member, by which contributing to the Members may contribute such additional amountsCompany on its behalf, and a reasonably detailed assessment of why alternative financing, notably unsecured all or secured debt financing, is not, in the opinion any part of the Management Committeeamount (the “Default Amount”) that the Non-Contributing Member failed to contribute to the Company (each such loan, appropriate in lieu a “Default Loan”), provided, that such Contributing Member shall have contributed to the Company its pro rata share of a the applicable Additional Capital Contribution. Such Default Loan shall be treated as (i) a non-recourse demand loan (except to the extent of the Non-Contributing Member’s Membership Interest), followed by (ii) an Additional Capital Contribution by such Non-Contributing Member to the Company. Each Default Loan shall bear interest (compounded monthly on the first day of each calendar month) on the unpaid principal amount thereof from time to time remaining from the date advanced until repaid, at the lesser of (A) 9% per annum or (B) the maximum rate permitted at law (the “Default Rate”). Each Default Loan shall have a one-time 1% origination fee. Default Loans shall be repaid out of the distributions that would otherwise be made to the Non-Contributing Member under ARTICLE VI or ARTICLE XII, as more fully provided for in Section 3.02(c).
(c) Notwithstanding any other provisions of this Agreement, any amount that otherwise would be paid or distributed to a Non-Contributing Member pursuant to ARTICLE VI shall not be paid to the Non-Contributing Member but shall be deemed paid and applied on behalf of such Non-Contributing Member (i) first, to unpaid origination fees on all Default Loans (in the order of their original maturity date), (ii) second, to accrued and unpaid interest on all Default Loans (in the order of their original maturity date), (iii) third, to the principal amount of such Default Loans (in the order of their original maturity date), and (iv) fourth, to any Additional Capital Contribution of such Non-Contributing Member that has not been paid and is not deemed to have been paid.
(d) If the Operating Member is the Non-Contributing Member, the Operating Member shall notify the Investor Member of its inability to fund an Additional Capital Contribution and the Investor Member shall have the right, exercisable in its sole discretion by delivering written notice to the Operating Member within ten (10) Business Days of such notice, to offer financing to the Operating Member at arm’s-length terms, the acceptance of which is subject to the approval of the Operating Member REIT Board, which must determine that the financing terms are fair, competitive, and commercially reasonable and on no less favorable to the Operating Member REIT than loans between unaffiliated parties under the same circumstances (the “Affiliate Loan Approval Standard”). The Operating Member agrees that if the Operating Member REIT Board determines that the Investor Member’s proposed financing terms meet the Affiliate Loan Approval Standard, it will not seek outside funding sources for the Default Amount.
(e) Except for services as contemplated by an applicable Work Planset forth in this Section 3.02, no neither Member shall be required to make an additional Additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity Contributions or make loans 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (StratCap Digital Infrastructure REIT, Inc.), Limited Liability Company Agreement (Strategic Wireless Infrastructure Fund Ii, 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.
(b) The Owner Member represents that as of the Effective Date, it (or NYRT) has reserved an amount equal to $90,693,167, representing 110% of the $82,448,334 of the capital required to be funded by Owner Member, including the portion thereof that is attributable to the Comfort Member’s share of such required capital (based on their respective Pro Rata Shares of the capital required to be funded by additional capital contributions in the Initial Budget).
(c) The Owner Member and the Investor Member each agree to contribute its Pro Rata Share of capital required to be funded by additional capital contributions for the purposes set forth in the Initial Budget. If (i) Owner Member shall fail to contribute its Pro Rata Share of capital required to be funded by additional capital contributions for the purposes set forth in the Initial Budget or any other Owner Requested Capital, and such failure continues for a 10 day period following the date set forth in the Call Notice by which the Capital Call Amount must be paid to the Company or (ii) Comfort Member does not make an additional Capital Contribution shall be a Non-Contributing Member with respect to which such Member has an option under Section 3.2(a) at its Pro Rata Share of capital required to be funded by additional capital contributions for the time specified purposes set forth in the notice Initial Budget or any other Owner Requested Capital (a “Noncontributing such Failed Contribution by the Comfort Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing MemberComfort Member Special Failed Contribution”) in writing and Owner Member shall fail to advance the Comfort Member Special Failed Contribution within 20 days of receipt of the total amount of Noncontributing related Failure Notice, then, in each case, in addition to other rights and remedies available to Investor Member Capital Contributions not made against Owner Member hereunder with respect to such failure, Owner Member and its appointed Manager(s) shall be deemed to have relinquished all rights to propose and execute any Major Decision, other than with respect to Major Decisions pursuant to clauses (the “Additional Capital Shortfall”a), (b), (c), (e), (f), (g), (j), (y) and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all (z) of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibledefinition thereof.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (New York REIT, Inc.), Membership Interest Purchase Agreement (New York REIT, Inc.)
Additional Capital Contributions. (a) From Upon the occurrence of the Final Closing Date, each such Nonmanaging Member (subject to the making of any and all Capital Contributions by such Nonmanaging Member pursuant to Section 3.1) shall have no further obligation to make any further Capital Contributions to the Fund.
(b) Notwithstanding anything to the contrary contained herein, the Managing Member may from time to timetime determine that additional capital contributions (the Additional Capital Contributions ) will be necessary or desirable to make Investments or cover Fund Expenses. Upon such determination, the Management CommitteeManaging Member shall notify each Nonmanaging Member in writing (each, subject an Additional Capital Call Notice ) of its intention to approval by make a Supermajority in Interest capital call (each an Additional Capital Call ). Each Additional Capital Call Notice shall specify:
(i) the aggregate amount of the Members, may determine that Additional Capital Contributions in addition to be made by the Initial Members’ prior Managing Members pursuant to such Additional Capital Call Notice (the Additional Capital Call Amount );
(ii) the purpose(s) for which such Additional Capital Call is being made and a description of the material terms of the Investment or Fund Expenses for which the Additional Capital Contributions are needed required;
(iii) the portion of Additional Capital Contributions to enable be made by such Nonmanaging Member, which shall equal the Company product of (A) the Percentage Interest of such Nonmanaging Member, determined as of the date of the applicable Additional Capital Call Notice, and (B) the Additional Capital Call Amount;
(iv) the date (the Additional Capital Contribution Date ) on which such Additional Capital Contribution is due (which shall be at least ninety (90) business days from and including the date of delivery of the Additional Capital Call Notice); and
(v) the account to conduct which and the manner (i.e., by either or both available funds check or wire transfer) in which such Additional Capital Contribution shall be made.
(c) Each Nonmanaging Member shall have the right, but not the obligation, to participate in any Additional Capital Call. Each Nonmanaging Member that chooses to make its Additional Capital Contribution pursuant to an Additional Capital Call Notice (a Participating Nonmanaging Member ) shall, with fifteen (15) business days of receipt of the applicable Additional Capital Call Notice, notify the Managing Member in accordance with writing (each, a Participation Notice ) of its election to make such Additional Capital Contribution. Each Participation Notice shall specify:
(i) the Work Plan. On making name of such a determinationNonmanaging Member; and
(ii) the amount of the Additional Capital Contribution elected to be made by such Participating Nonmanaging Member (which shall be no more than the amount set forth in Section 3.5(b)(iii)).
(d) Notwithstanding anything to the contrary contained herein, the Management Committee Managing Member may, in its sole discretion, accept Additional Capital Contributions from any Participating Nonmanaging Member less than the amounts specified in such Nonmanaging Member s Additional Capital Call Notice as provided in Section 3.5(b)(iii).
(e) In the event, with respect to an Additional Capital Call, less than all of the Nonmanaging Members are Participating Nonmanaging Members or in the event any Participating Nonmanaging Member elects to make an Additional Capital Contribution less than the amount set forth in Section 3.5(b)(iii), and the Managing Member determines that additional funds are required by the Fund for funds to cover such shortfall (the Additional Capital Contribution Shortfall ), the Managing Member may (but shall give written have no obligation to) do either of the following:
(i) deliver notice of such determination (the Remedial Additional Capital Call Notice ) to all Participating Nonmanaging Members at least no later than thirty (30) days before after the Additional Capital Contribution Date specified in the Additional Capital Call Notice (and, in connection therewith, the Managing Member may extend the Additional Capital Contribution Date in the Remedial Additional Capital Call Notice to a date no later than sixty (60) days after the date on specified in the Additional Capital Call Notice), pursuant to which such additional the Managing Member shall request that the Participating Nonmanaging Members make Additional Capital Contributions are needed. The notice shall set forth (the Remedial Additional Capital Contributions ) in the aggregate amount of additional such Additional Capital Contribution neededShortfall; or
(ii) cause RiverOak Investment Corp., the purpose for which it is neededLLC (in its capacity as a Nonmanaging Member), 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 Additional Capital Contribution to the Fund 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall Contribution Shortfall.
(f) With respect to each Remedial Additional Capital Call Notice, the portion of Additional Capital Contributions to be made by each Participating Nonmanaging Member therefor shall equal the product of (A) a fraction, the numerator of which shall be the Adjusted Capital Account Balance of such Participating Nonmanaging Member and the denominator of which shall be the aggregate Adjusted Capital Account Balances of all Participating Nonmanaging Members, each determined as of the Contributing date of the applicable Remedial Additional Capital Call Notice, and (B) the Additional Capital Contribution Shortfall. Each Participating Nonmanaging Member shall have the right (but not the obligation) to make the Remedial Additional Capital Contribution required to be made by such Participating Nonmanaging Member (but no less than such amount) and an electing Participating Nonmanaging Member shall make its Remedial Additional Capital Contribution on or prior to the Additional Capital Contribution Date set forth in the Remedial Additional Capital Call Notice, provided, however, if the aggregate Remedial Additional Capital Contributions elected to be made by the Participating Nonmanaging Members electing hereunder shall be less than the Additional Capital Contribution Shortfall, the Managing Member shall have the right (but not the obligation) to cause RiverOak Investment Corp., LLC (in its capacity as a Nonmanaging Member’s ), to make such Additional Capital Contributions to the Fund as may be required in order for the total Remedial Additional Capital Contributions made pursuant to such Remedial Additional Capital Call Notice to equal the amount of the applicable Additional Capital Contribution Shortfall.
(g) The Managing Member shall increase the Percentage Interest bears and Capital Account of each Participating Nonmanaging Member under this Section 3.5 to reflect the Additional Capital Contribution(s) and Remedial Additional Capital Contribution(s) made by such Participating Nonmanaging Member.
(i) If in connection with the making of any Investment or the payment of any Fund Expense in respect of which an Additional Capital Call Notice has been delivered, the Managing Member shall determine that it is necessary or desirable to increase the Additional Capital Contributions to be made by the Nonmanaging Members in connection therewith, the Managing Member shall deliver a revised Additional Capital Call Notice (each, a Revised Additional Capital Call Notice ) to each Participating Nonmanaging Member, amending the original Additional Capital Call Notice and specifying:
(1) the amount of any increase in the Additional Capital Call Amount,
(2) the amount of the increase in the Additional Capital Contribution to be made by such Nonmanaging Member,
(3) the date of contribution with respect to the combined Percentage Interests of all amount of the Contributing Membersincrease in the Additional Capital Contribution if different from the Additional Capital Contribution Date specified in the applicable First Additional Capital Call Notice, and
(4) the reason for such increase.
(ii) If the amount of such increase is equal to or less than twenty-five percent (25%) of the Additional Capital Contributions specified in the original Additional Call Notice, the Additional Capital Contribution Date shall be extended to a date no earlier than the later of (x) the date specified in the Additional Capital Call Notice or (y) five (5) Business Days from and including the date of delivery of the Revised Additional Capital Call Notice. If the total amount of Additional Capital Shortfall such increase is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until greater than twenty-five percent (25%) of the Additional Capital Shortfall is as fully contributed as possibleContributions specified in the original Additional Call Notice, the Additional Capital Contribution Date shall be extended to a date no earlier than the later of (A) the date specified in the Additional Capital Call Notice or (B) fifteen (15) Business Days from and including the date of delivery of the Revised Additional Capital Call Notice.
(iii) For the avoidance of doubt, any increase in the Capital Contributions of a Nonmanaging Member due to an increase in the Additional Capital Call Amount pursuant to this Section 3.5(h) shall be calculated in accordance with Section 3.5(b)(iii).
Appears in 2 contracts
Sources: Operating Agreement, Operating Agreement
Additional Capital Contributions. (a) From time to timeIf any Budget approved by the Members shows a deficit for the coming calendar year (a “Deficit”), the Management CommitteeManager shall distribute to each Member a certificate (the “Budget Certificate”) stating (i) the amount of the Deficit, subject if any, to approval by a Supermajority in Interest of be funded through additional Capital Contributions from the Members, may determine that (ii) when the additional Capital Contributions must be made (the “Funding Dates”), (iii) the amount of the additional Capital Contributions required to be made on each such Funding Date and (iv) each Member’s share of those additional Capital Contributions on each such Funding Date, which shall be based on each Member’s Percentage Interest (and which shall be payable in addition accordance with this Article III).
(b) The Members shall be required to make additional Capital Contributions to fund a Deficit on the terms set forth in this Article III.
(c) The Manager shall be required to obtain the approval of the Members by a Majority Interest prior to amending any Budget then in effect during any calendar year (including any change in additional Capital Contributions required to fund a Deficit) and shall thereupon promptly cause to be issued a revised Budget Certificate for such calendar year (or remainder thereof). Each Member shall make all additional Capital Contributions as and when called for by any Budget Certificate as in effect from time to time on the terms set forth in this Article III. If a Member objects to making such additional Capital Contributions or otherwise fails to make such additional Capital Contributions, then the Manager’s and Company’s remedies shall be as set forth in this Article III.
(d) All Capital Contributions shall be made in U.S. dollars.
(e) If any new Member fails to make the full amount of its initial Capital Contribution, as required by any amendment to this Agreement adding a new Member, within 5 calendar days after the execution of said amendment, the Manager shall have the right to declare said amendment void at any time thereafter until the new Member’s initial Capital Contribution has been paid. In the event that such a Member has made part, but not all, of said Member’s initial Capital Contribution, the Company shall refund the portion of the Capital Contribution that was made before the amendment adding said Member was declared void by the Manager. *** Confidential treatment requested
(f) If any Member objects to contributing an additional Capital Contribution, or otherwise fails to contribute its share of additional Capital Contributions when due (an “Unpaid Contribution”), that Member shall be a “Non-paying Member” and shall be in default under this Agreement. In such event, the Manager shall send the Non-paying Member written notice of such nonpayment, giving such Non-paying Member thirty (30) days from the date such notice is given to contribute the entire amount of such Non-paying Member’s required additional Capital Contribution. If the Non-paying Member does not contribute the required additional Capital Contribution to the Initial Members’ prior Company within said 30-day period, those Members who have paid their respective additional Capital Contributions are needed (“Complying Members”) and who hold a majority of the Membership Interests held by all Complying Members shall choose one of the following options to enable the Company to conduct its business in accordance proceed with the Work Plan. On making such a determination, full amount of additional funds needed to meet the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date Budget on which such the requirement of 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.was based:
Appears in 2 contracts
Sources: Operating Agreement, Operating Agreement (Helix Biomedix Inc)
Additional Capital Contributions. (a) From time In addition to time, the Management Committee, subject to approval by a Supermajority in Interest Initial Capital Contributions and the Initial Delayed Contributions of the Members, may in the event a Member or Members holding at least a Majority of the Membership Units of the Company or the Managers determine that Capital Contributions in addition to the Initial Members’ prior Additional Capital Contributions are needed reasonably necessary to enable facilitate the Company business needs of the Company, including, without limitation, to conduct its meet the Company's operating expenses, to fund the expansion of the Company's business, to acquire other businesses or business entities and to purchase any Property reasonably necessary for the operation of the Company, each Member shall be entitled, but not required, to make such Additional Capital Contribution on a basis pro rata to such Member's Membership Interest in accordance with the Work PlanCompany. On Upon making such a determination, the Management Committee Company shall give written notice of such determination Notice to all Members each Member in writing at least thirty fifteen (3015) days before prior to the date on which such additional the Additional Capital Contributions are neededdue (the "Company Contribution Notice"). The notice Such Company Contribution Notice shall set forth the amount of additional Additional Capital Contribution needed, the purpose for which it the contribution is needed, and the date by which the Members may Member must 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 for services as contemplated by an applicable Work Plan, no Each 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 who desires to make such additional Capital Additional Contribution in proportion shall provide Notice (the "Member Contribution Notice") 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 within fifteen (15) days of its fair market value. The fair market value receipt of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) the Company Valuation by (ii) Contribution Notice. In 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 event that one or more of the Members based fails to provide the Member Contribution Notice, the contributing Member or Members shall be entitled to make such Additional Capital Contribution on a basis pro rata to such Members' Membership Interest in the total number of Company (calculated without taking into account the Membership Units held by each Member after the issuance of the non-contributing Members). Contributing Members shall be issued one additional Units and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify Membership Unit for each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount $10.00 of Additional Capital Shortfall as the Contributing contributed by such Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Operating Agreement (Juliana Mining Co Inc), Operating Agreement (Juliana Mining Co 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.
(b) If a Member does one or more Partners do not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified elect, in the notice aggregate, to contribute all of the Call Amount (a “Noncontributing Member”or are deemed to have waived such right), the Partnership shall have the right, but not the obligation, to issue and sell to one or more Persons up to the number of GP Units (as determined by the Management Committee) applicable to the portion of the Call Amount not contributed by the Partners at any time during the 90 Business Days following the end of the Election Period, for an aggregate amount equal to the applicable portion of the Call Amount not contributed by the Partners; provided, that if the Partnership fails to issue and sell such GP Units for such aggregate amount within such 90-Business Day period, the Partnership may not raise any additional capital without first issuing another Call Notice pursuant to Section 5.2(a). The issuance of any GP Units to any Person shall be subject to such terms and procedures as the Management Committee shalldetermines are necessary or desirable, within five including obtaining any necessary governmental approvals, waivers and consents required for such issuance (5including any approvals under the HSR Act).
(c) days after said failure. notify each other Member (eachNotwithstanding anything to the contrary in this Agreement, a “Contributing Member”) in writing if any Electing Partner breaches its obligation to contribute any portion of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”Call Amount it elected to contribute pursuant to Section 5.2(a), then in addition to any other rights the Partnership and shall specify a number of days within which each Contributing Member the non-breaching Partners may make an additional Capital Contributionhave at law or in equity, which such breaching Partner and any transferee thereof shall not be less than an amount bearing have any future rights granted under Section 5.2(a) unless the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, Management Committee expressly designates otherwise (which the Management Committee may use do on an offer-by-offer basis or not at all); provided, that the MC Member designated by the breaching Partner shall not be entitled to participate in (i) any reasonable method decisions regarding the number of GP Units to provide Members the opportunity be issued with respect to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblesuch Call Notice or (ii) any decisions regarding whether such breaching Partner has any future rights under Section 5.2(a).
Appears in 2 contracts
Sources: General Partnership Agreement (Regency Energy Partners LP), General Partnership Agreement (Regency Energy Partners LP)
Additional Capital Contributions. (a) From If at any time, and from time to time, after the Management Committee, subject to approval by a Supermajority in Interest date on which each of the Members, may determine that Members has made its Capital Contributions in addition up to the Initial Members’ prior amount of such Member’s Capital Contributions are needed to enable the Company to conduct its business Commitment in accordance with Section 3.1 hereof, additional cash in excess of Net Cash Flow and other funds available to the Work Plan. On making Venture is required by the Venture (i) in order to pay any Organizational Expenses or Operating Expenses, or (ii) in respect of the Project, including in order to pay the costs of maintenance, repairs, capital improvements, replacements or other expenses necessary to comply with lease or other contractual obligations of the Subsidiary REIT (or any subsidiary thereof that owns the Project) and to keep the Project in good condition and repair, then the Manager may make a Capital Call for additional capital from the Members in proportion to their respective Percentage Interests in an amount believed in good faith by the Manager to be the amount needed to fund the cash needs of the Venture and in such a determination, event shall provide the Management Committee shall give written Members with not less than ten (10) Business Days’ advance notice of such determination to all Members at least thirty (30) days before the date on which such contributions are required to be made. Subject to Section 3.3(b), the Members shall make their respective 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 as and when requested in 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 outstandingnotice.
(b) If a Member does not In the event that BH MP declines to make an its additional Capital Contribution in accordance with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”3.3(a), the Management Committee shallManager shall be obligated to contribute, within five (5) days after said failure. notify each other Member (eachor to cause one or more of its Affiliates, a “Contributing Member”) in writing of the total or Behringer or its Affiliates, to contribute, an amount of Noncontributing Member Capital Contributions not made (the “Additional Substitute Capital”) equal to the BH MP’s Capital Shortfall”Contribution specified in such Capital Call. Unless otherwise agreed by PGGM, such Persons shall contribute the Substitute Capital to the Subsidiary REIT. In consideration of the contribution of the Substitute Capital, the Subsidiary REIT shall issue Shares to the Person(s) contributing the Substitute Capital based on the value of the outstanding Shares of the Subsidiary REIT determined in accordance with this Section 3.3(b), and shall specify a . The number of days within which each Contributing Member may make an additional Shares to be issued by the Subsidiary REIT in consideration of the contribution of Substitute Capital Contribution, which shall not be less than an amount bearing the same ratio to equal the amount of Additional such Substitute Capital Shortfall as divided by the Contributing Member’s Percentage Interest bears to value of a Share, which value shall be determined by the combined Percentage Interests of all net asset value of the Contributing Members. If Subsidiary REIT, based upon the total amount valuation of Additional Capital Shortfall is not so contributed, the Management Committee may use Project specified in this Section 3.3(b) and the Subsidiary REIT’s interest in the Project and taking into account the fair value of any reasonable method other assets and the liabilities of the Subsidiary REIT and the number of Shares outstanding immediately prior to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.the
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Behringer Harvard Multifamily Reit I Inc), Limited Liability Company Agreement (Behringer Harvard Multifamily Reit I Inc)
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 this Section 3.2(a)the Company, the Company shall issue amount and form of the 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) Capital Contribution 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 Fair Market Value thereof, and shall result in a corresponding increase in such Member’s Capital Account, as determined by the Board of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandingManagers.
(b) If 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 5.4 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 does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(ain its capacity as a creditor) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount Company (and no such creditor shall be a third-party beneficiary of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”this Agreement), and no Member shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio have any duty or obligation to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all any creditor of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity Company to make any additional Capital Contributions until or to provide any additional financing or to cause any Member to consent to the Additional making of additional Capital Shortfall is as fully contributed as possibleContributions or to the provision of additional financing.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (CF Industries Holdings, Inc.), Limited Liability Company Agreement (CHS Inc)
Additional Capital Contributions. (a) From time to timeIn the event the Board determines that the Company requires additional capital, the Management Committee, subject Board may call upon the Members to approval by a Supermajority in Interest of the Members, may determine that make additional Capital Contributions in addition to the Initial Members’ prior Company in such amounts that the Board shall reasonably determine is necessary or as may be required (each of which shall be an “Additional Capital Contributions are needed Contribution”) to enable be made pro-rata by the Company to conduct its business Members in accordance with their Percentage Interests at such time. The Board shall do so by delivering to each Member a notice (the Work Plan. On making “Additional Contribution Notice”) specifying: (a) the total amount of each such a determination, the Management Committee shall give written notice Additional Capital Contribution; (b) each Member’s proportionate 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, 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 computed based on the total number of Units held by each Member after Members’ Percentage Interest; and (c) the issuance use of the additional Units and the total number of Units then outstandingrequested funds.
(b) If a Member does not make Notwithstanding the foregoing, in the event that the Manager shall reasonably determine that it is in the best interests of the Company to issue OP Units in First Capital Real Estate Operating Partnership, L.P. in lieu of cash for any Company purpose, including, without limitation, for the payment or repayment of any obligation of the Company or any obligation of the Company’s Subsidiaries, and in the event that the Manager shall issue OP Units in First Capital Real Estate Operating Partnership L.P. for such purpose, then the Manager shall be deemed to have made an additional Additional Capital Contribution with respect to which the Capital of the Company in the amount of the value of such Member has an option under Section 3.2(a) issued OP Units (based on the exchange ratio for such OP Units at the time specified in of issuance) and Schedule A shall automatically be deemed amended and restated to reflect the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”)Contribution made by the Manager by the issuance of OP Units, and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears shall be adjusted as of such date, to a fraction, expressed as a percentage, the combined Percentage Interests numerator of which is the aggregate Capital Contributions made by each Member and the denominator of which is the aggregate Capital Contributions made by all of the Contributing Members. If Members to the total amount Capital of Additional Capital Shortfall is not the Company, and the Units held by the Members shall be similarly adjusted, so contributed, that each Member shall have such number of Units equal to 100,000 multiplied by the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleMember’s Percentage Interest.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (First Capital Real Estate Trust Inc), Interest Contribution Agreement (First Capital Real Estate Trust Inc)
Additional Capital Contributions. (a) From time to time10.1 Save as otherwise expressly provided for in this Agreement, the Management Committee, subject to approval by a Supermajority in Interest none 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 Shareholders shall be required to make an any loans to, purchase additional CPECs or subscribe for any shares of either the Company or its Subsidiary Undertakings nor to provide guarantees, indemnities or other security for the obligations of the Company or its Subsidiary Undertakings.
10.2 The Board (after consultation with the Property Manager and/or Asset Manager) may issue a request for additional capital contributions to fund capital expenditure, tenant improvements, lender funding requirements and similar costs (“Additional Capital Contributions”). Each Shareholder shall have the option to fund their Agreed Proportion of each of the Additional Capital Contributions within 20 days after the written request from the Board. In the event that one Shareholder fails to contribute its proportion of the requested Additional Capital Contribution (the “Shortfall Amount”) when required, the other Shareholder (the “Contributing Shareholder”) shall have the right, but not the obligation, to fund the Shortfall Amount by subscribing for additional Shares and relevant CPECs. If the Contributing Shareholder elects to fund the Shortfall Amount by subscribing for additional Shares and relevant CPECs, the Shares and CPECs shall be issued in the same relative proportions as the existing Shares and CPECs in issue (which, for information only, is intended to be 1 Share to every 99 CPECs following Property Completion) at a subscription price equal to their nominal value.
10.3 If both Shareholders fail to fund their Additional Capital Contribution. However, except as contemplated by an applicable Work Planor if one Shareholder fails to fund and the Contributing Shareholder elects not to fund the Shortfall Amount within ten Business Days of the due date for the Additional Capital Contribution, each Member the Board shall be given source on behalf of the opportunity to Company debt financing or make such additional Capital Contribution in proportion other arrangements as are necessary to pay for the Shortfall Amount (including, if third party debt financing is not available on reasonable terms, a loan to the Company from a Shareholder (or an Associate) on terms which are no less favourable to the Company than those available from other lenders) with terms such Member’s Percentage Interest. Upon payment that the financing arrangement would not be treated as a security under Section 856(m) of an additional Capital Contribution the Code.
10.4 Any Shares and CPECs issued by 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 Clause 10 in respect of an additional Unit issued pursuant to this Section 3.2(aAdditional Capital Contributions (or any Shortfall Amount) shall be determined of the class or classes that relate to the Subsidiary Undertaking(s) (or the relevant asset(s) within the Subsidiary Undertaking(s) if applicable) for which the monies obtained from the Additional Capital Contribution shall be used. If the Additional Capital Contributions are not to be applied to one or more particular Subsidiary Undertakings or assets represented by dividing (i) the Company Valuation by (ii) specific classes of Shares and CPECs, then Shares and CPECs of all classes shall be issued pro rata to the number of Units outstanding immediately each class already in existence 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContribution being made. Furthermore, only A classes of Shares and/or CPECs shall be issued to the A Shareholder and only B classes of Shares and/or CPECs shall be issued to the B Shareholder.
Appears in 2 contracts
Sources: Joint Venture Agreement (Hines Global REIT, Inc.), Joint Venture Agreement (Hines Global REIT, Inc.)
Additional Capital Contributions. (a) From If at any time to timeafter the Initial Capital Contributions, the Management Committee, subject to approval by a Supermajority in Interest of Additional BH Investor Contributions and the Members, may determine that Capital Contributions in addition to the Initial Members’ prior Additional Scheduled Capital Contributions are needed to enable made, the BH Investor determines that the Company requires (or will require) additional funds for any purpose (“Cash Needs”), then the BH Investor shall use reasonable efforts to conduct its business in accordance with the Work Plansecure third party or Member loans to fulfill such Cash Needs. On making If such a determinationefforts to secure third party or Member loans are unsuccessful, the Management Committee shall give BH Investor may send written notice of (“Additional Capital Notice”) requesting that the Members contribute in cash such determination amounts as are necessary to all Members at least thirty (30) days before the date on which satisfy such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution needed, Cash Needs and describing the purpose for which it is the funds are 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 PlanIf so requested, each Member shall be given the opportunity obligated to make such additional an Additional Capital Contribution in proportion equal to such Member’s the product of its Company Percentage Interestand the amount of the Cash Needs. Upon The time for the 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 the BH Investor, but shall in no event be less than ten (i10) days after 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 delivery 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 Additional 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 outstandingNotice.
(b) If a Member does not make an additional fails to timely contribute all or any portion of any Additional Capital Contribution required of such Member, then such Member shall be considered a “Delinquent Member.” The Company may, upon notice to a Delinquent Member, exercise the following remedies:
(i) permit the non-Delinquent Member(s) to advance that portion of the Additional Capital Contribution that is in default as a loan (a “Default Loan”) with the following results: (A) the sum thus advanced shall constitute a loan to the Delinquent Member for which the Delinquent Member will pledge its interests in the Company as security for such loan; (B) such loan and all accrued unpaid interest thereon shall be due on demand, or if no demand is made, twelve (12) months after such advance is made; (C) the loan shall bear interest at the lesser of twelve percent (12%) per annum or the highest rate permitted by applicable law, from the date made until the date fully repaid compounding monthly; (D) all Company distributions and other payments that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company) under this Agreement (including those under Article 6) shall be paid to the non-Delinquent Member until the loan and all interest accrued thereon is paid in full (with all such payments being applied first to accrued and unpaid interest and then to principal and being deemed to be a distribution or payment (as may apply) to the Delinquent Member, and, in turn, a payment by the Delinquent Member with respect to which the loan from the non-Delinquent Member); and (E) the non-Delinquent Member may, in addition to the other rights granted herein, take such action as the non-Delinquent Member has an option under Section 3.2(a) may deem appropriate to obtain payment of the loan at the time specified expense of the Delinquent Member; or
(ii) permit the non-Delinquent Member to contribute that portion of the Additional Capital Contribution that is in default as an Additional Capital Contribution made by the non-Delinquent Member, in which case the non-Delinquent Member shall have its Company Percentage increased and the Delinquent Member shall have its Company Percentage decreased in the notice following manner: (a “Noncontributing Member”), A) the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing Company Percentage of the total amount of Noncontributing non-Delinquent Member immediately following such Additional Capital Contributions not made (shall be increased by an amount equal to 150% x A/B, where ‘A’ equals the “amount the non-Delinquent Member contributed in respect of the Delinquent Member’s required Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, and ‘B’ equals the sum of all unreturned Capital Contributions previously made to the Company after giving effect to the amounts advanced under this Section 3.4(b)(ii) on behalf of the Delinquent Member; and (B) the Company Percentage of the Delinquent Member shall be decreased by the increase of the non-Delinquent Member’s Company Percentage. An example of the operation of this Section 3.4(b)(ii) is set forth in Exhibit D attached hereto.
(c) The exercise by the Company of the remedies set forth in Section 3.4(b) above shall be determined by the non-Delinquent Members in their sole discretion and not by any Delinquent Member.
(d) With respect to any efforts by the BH Investor to obtain loans to the Company from a third party or a Member, the financing terms must be substantially similar to (or more favorable than) loans which the Company could obtain on a competitive arms-length basis. If the BH Investor is unable to determine whether the financing terms are competitive on an arms-length basis, the BH Investor may seek and rely upon the advice of an independent expert in financing. If any Member makes any loan or loans to the Company or advances money on its behalf, the amount of any loan or advance shall not be less than an amount bearing treated as a Capital Contribution but shall be treated as a debt due from the same ratio Company to the amount of Additional Capital Shortfall as the Contributing such Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT I, Inc.), Limited Liability Company Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority Except as otherwise expressly provided 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 Planthis Agreement, no Member shall be required to make an any additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each No Member shall be given the opportunity permitted to make such any 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), without 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 approval 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 outstandingCommittee.
(b) If Subject to the rights of each Member to purchase its proportionate share of additional Membership Interests issued by the Company in accordance with Section 3.7, the Company may offer additional Membership Interests to:
(i) any person that is not an Affiliate of a Member does with the approval of the Management Committee; or
(ii) any person that is a Member or is an Affiliate of a Member with the approval of (A) the Management Committee, (B) a Majority in Interest of the Group A Members and (C) a Majority in Interest of the Group B Members, it being expressly understood that such approval of the Members shall also include their approval of any related valuations of Gross Asset Value by the Management Committee and, if such Members approve the Transfer without approving said valuation, Gross Asset Value shall be determined by a third Person familiar with the valuation of such transactions selected jointly by a Majority in Interest of the Group A Members and a Majority in Interest of the Group B Members not make an later than ten (10) days after their approval of the Transfer or, if the Members fail to so select a third Person, then such third Person will be selected in accordance with the rules and procedures of the American Arbitration Association in New York, New York. If any additional Capital Contributions are made by Members but not in proportion to their respective Percentage Interests, the Percentage Interest of each Member shall be adjusted such that each Member's revised Percentage Interest determined immediately following the additional Capital Contributions shall be equal to a fraction (1) the numerator of which is the sum of (a) the positive Capital Account balance of the Member determined immediately preceding the date the additional Capital Contribution with respect is made (such Capital Account to which be computed by adjusting the book value for Capital Account purposes of each Company asset to equal its Gross Asset Value as of such Member has an option under Section 3.2(adate, as provided in subparagraph (b) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount definition herein of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”"Gross Asset Value"), and shall specify a number of days within which each Contributing Member may make an (b) the additional Capital Contribution, if any, made by such Member, and (2) the denominator of which shall not be less than an amount bearing is the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all sum of the Contributing Members. If the total amount of Additional positive Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make Account balances and additional Capital Contributions until of all Members, including any new Members (in each case calculated as provided in Section 3.2(b)(ii)(1)). The names, addresses and Capital Contributions of the Additional Capital Shortfall is as fully contributed as possibleMembers shall be reflected in the books and records of the Company.
Appears in 2 contracts
Sources: Operating Agreement (Greenmarine Acquisition Corp), Operating Agreement (Seacor Smit Inc)
Additional Capital Contributions. (a) From time Except for Capital Contributions from each Member in proportion to time, the Management Committee, subject to approval by a Supermajority such Member's then outstanding Percentage Interest in Interest respect of the Members, may determine that Capital Contributions in addition to General Partner's Percentage for equity issuances by 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 amountsMLP, 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 Planequity issuances approved pursuant to Section 7.10(b)(v), 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 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.
(b) Subject to the approval of a Supermajority of the Board pursuant to Section 7.10, the Company may offer additional Membership Interests to any Person. If a any additional Capital Contributions are made by Members but not in proportion to their respective Percentage Interests, the Percentage Interest of each Member does not make an shall be adjusted such that each Member's revised Percentage Interest determined immediately following each such additional Capital Contribution with respect shall be equal to a fraction (i) the numerator of which such Member has an option under Section 3.2(ais the sum of (A) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing positive Capital Account balance of the total amount of Noncontributing Member determined immediately preceding the date such additional Capital Contributions not Contribution is made (such Capital Account to be computed by adjusting the “Additional book value for Capital Shortfall”Account purposes of each Company asset to equal its Gross Asset Value as of such date, as provided in subparagraph (b) of the definition herein of "GROSS ASSET VALUE"), and shall specify a number of days within which each Contributing Member may make an (B) such additional Capital Contribution, if any, made by such Member, and (ii) the denominator of which shall not be less than an amount bearing is the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all sum of the Contributing Members. If positive Capital Account balances immediately preceding the total amount of Additional date such additional Capital Shortfall Contribution is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make made plus additional Capital Contributions until of all Members on the Additional date of such additional Capital Shortfall is Contribution, including Capital Contributions of any new Members (in each case calculated as fully contributed as possibleprovided in (i) above). The names, addresses and Capital Contributions of the Members shall be reflected in the books and records of the Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Natural Resource Partners Lp), Limited Liability Company Agreement (Natural Resource Partners Lp)
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 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 additional Capital Contribution needed, the purpose may be called for which it is needed, the date by which from the Members may contribute such additional amounts(i) by any Member if the same is a Protective Capital Call, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, is not, (ii) as determined in the opinion sole good faith discretion of the Management Committee, appropriate in lieu by written notice to the Members from time to time as and to the extent capital is necessary to pay an expense or liability of a the Property, the Company, or any Owner. Such additional Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member Contributions shall be required to make in an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, amount for each Member shall be given equal to the opportunity to make such additional product of the amount of the aggregate Capital Contribution in proportion to such called multiplied by each Member’s then current Percentage Interest. Upon payment of an Such additional Capital Contribution pursuant Contributions shall be payable by the Members 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 upon the earlier of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) twenty (20) days after written request from the Company Valuation by Member or Management Committee, as applicable, or (ii) the number date when the Capital Contribution is required (which shall be no sooner than 10 days after the delivery of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Unitswritten request), the Gross Asset Value of the Company’s assets will be adjusted as set forth in a manner provided under written request from the definition of Gross Asset Value in Appendix 1 attached heretoMember or Management Committee, 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 outstandingas applicable.
(b) If a Member does (a “Defaulting Member”) fails to make a Capital Contribution that is required as provided in Section 5.1 or Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), the other Member, provided that it has made the Capital Contribution required to be made by it, shall have (in addition to such rights as may be applicable pursuant to Section 5.8) one or more of the following exclusive remedies:
(1) to advance to the Company on behalf of, and as a loan to the Defaulting Member, an amount equal to the Default Amount to be evidenced by a promissory note in form reasonably satisfactory to the non-Defaulting Member (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be credited with the amount of such Default Amount attributable to a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the non-Defaulting Member. Any Default Loan shall bear interest at the rate of fifteen percent (15%) per annum, but in no event in excess of the highest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from the non-Defaulting Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan, to the extent unpaid, shall accrue and compound on an annual basis. The Default Rate shall in no event exceed 15% per annum on a cumulative basis. A Default Loan shall be prepayable, in whole or in part, at any time or from time to time without penalty. Any such Default Loans shall be with full recourse to the Defaulting Member and shall be secured by the Defaulting Member’s Interest, including, without limitation, such Defaulting Member’s right to Distributions. In furtherance thereof, upon the making of any such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-Defaulting Member and agrees to promptly execute such documents and statements reasonably requested by the non-Defaulting Member to further evidence and secure such security interest. Any advance by the non-Defaulting Member on behalf of a Defaulting Member pursuant to this Section 5.2(b)(1) shall be deemed to be a Capital Contribution made by the Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Member hereunder shall be applied first to payment of any interest due under any Default Loan and then to principal until all amounts due thereunder are paid in full. While any Default Loan is outstanding, the Company shall be obligated to pay directly to the non-Defaulting Member, for application to and until all Default Loans have been paid in full, the amount of (x) any Distributions payable to the Defaulting Member, and (y) any proceeds of the sale of the Defaulting Member’s Interest;
(2) subject to any applicable thin capitalization limitations on indebtedness of the Company for U.S. federal income tax purposes, to treat the non-Defaulting Member’s portion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-Defaulting Member and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to any Member. If each Member has loans outstanding to the Company under this provision, such loans shall be payable to each Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be treated as a Capital Contribution made by any Member;
(3) to make an additional Capital Contribution with respect to which the Company equal to the Default Amount whereupon the Percentage Interests of the Members shall be recalculated to (i) increase the non-Defaulting Member’s Percentage Interest by the percentage (“Applicable Adjustment Percentage”) determined by dividing one hundred fifty percent (150%) of the Default Amount by the sum of the Members’ Total Investment (taking into account the actual amount of such Member has an option under Section 3.2(aadditional Capital Contribution) at and by increasing its Total Investment solely for purposes of determining the time specified Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) reduce the Defaulting Member’s Percentage Interest by the Applicable Adjustment Percentage and by decreasing its Total Investment solely for purposes of determining the Member’s Percentage Interest by one-half of the amount of the Default Amount; or
(4) in lieu of the notice remedies set forth in subparagraphs (a “Noncontributing Member”1), the Management Committee shall, within five (52) days after said failure. notify each other Member or (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”3), and shall specify a number revoke its portion of days within which each Contributing Member may make an such additional Capital Contribution, which shall not be less than an amount bearing whereupon the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all portion of the Contributing Members. If Capital Contribution made by the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblenon-Defaulting Member shall be returned within ten (10) days.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.), Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. (a) From No Member shall have any obligation to make any Capital Contribution in excess of its Initial Capital Contribution described in Section 8.1 above. The Managers may from time to time, time make a written request to the Management Committee, subject Members for such Additional Capital Contributions as are determined by the Managers to approval by a Supermajority be necessary and appropriate in Interest connection with the conduct of the Membersbusiness of the Company and ownership of its properties and in order to pay taxes, may determine that insurance premiums, principal and interest on indebtedness of the Company and various other costs of the operation of the Company and ownership of the Properties, including capital expenditures. Such Additional Capital Contributions shall be requested in addition proportion to the Initial Members’ prior respective Membership Interests of each of the Members and shall be payable within ten (10) days of the written request from the Managers. If all Members do not make such Additional Capital Contributions are needed on a timely basis, then the contributing Members shall have the opportunity, but not the obligation, to enable contribute such amounts to the Company that the noncontributing Members failed to conduct its business contribute on a pro rata basis in accordance with their Membership Interests. Any opportunities to make such Additional Capital Contributions that are declined may be reoffered to the Work PlanMembers who have agreed to make such Additional Capital Contributions on a pro rata basis in proportion to their Membership Interests until the entire amount needed is contribute to the Company or said Members have declined to contribute any remaining amount. On Any remaining amount may be loaned to the Company by Members with such interest and such other terms as may be agreed upon between the Members making such a determination, loans and the Management Committee shall give written notice of Company. Any such determination amounts which are not loaned or contributed 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 Company 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, be borrowed by the Company from third parties in the opinion discretion 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 outstandingManagers.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Walden Residential Properties Inc), Operating Agreement (Walden Residential Properties Inc)
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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 2 contracts
Sources: Operating Agreement (Hollywood Park Fall Operating Co), Operating Agreement (Hollywood Park Inc/New/)
Additional Capital Contributions.
(a) From The Members shall make such additional Capital Contributions (such additional Capital Contributions, the “Additional Capital Contributions”) as the Manager may determine, but in no event, other than as provided in Section 11.9, shall the aggregate amount of such Additional Capital Contributions exceed ten percent (10%) of the amount of such Member’s Capital Commitment as set forth on such Member’s accepted Subscription Agreement(s). Any such Additional Capital Contributions shall be made by the Members pro rata in proportion to their Units. If any Additional Capital Contributions shall be required, the Company shall deliver to the Members a written notice (a “Capital Contribution Notice”) of the need for Additional Capital Contributions, which Capital Contribution Notice shall specify in reasonable detail (i) the aggregate amount of such Additional Capital Contributions, (ii) such Member’s share of such aggregate amount of Additional Capital Contributions, and (iii) the date (which date shall not be less than ten (10) Days following the date that such Capital Contribution Notice is given) on which such Additional Capital Contributions shall be required to be contributed to the Company. Upon each Member making its Additional Capital Contribution required pursuant to this Section 4.2(a), each Member’s Capital Account shall be increased by an amount equal to such Member’s Additional Capital Contribution and no additional Units shall be issued by the Company.
(b) If any Member shall fail to timely make, or notifies the Company in writing that it shall not make, all or any portion of any Additional Capital Contribution which such Member is obligated to make under Section 4.2(a), then such Member shall be deemed to be a “Defaulting Member” and any such amount that a Defaulting Member fails to contribute, an “Unfunded Amount”. The contributing Members (each a “Non-Defaulting Member”) shall be entitled, but not obligated, to loan to the Defaulting Member (each such loan, a “Contribution Default Loan”) without any further action of the Defaulting Member, by contributing to the Company on the Defaulting Member’s behalf, all or any part of the Unfunded Amount; provided, that such Non-Defaulting Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution; provided, further, that if more than one Non-Defaulting Member elects to make a Contribution Default Loan, the amount of the Contribution Default Loan contributed by each Non-Defaulting Member shall be pro rata based on the number of Units of such Non-Defaulting Members, unless otherwise agreed upon among themselves in which case all relevant terms of this Section 4.2(b) shall be modified mutatis mutandis. Each Contribution Default Loan shall bear interest (compounded quarterly on the first day of each calendar quarter) on the unpaid principal amount thereof from time to time remaining from the date advanced until repaid, at the lesser of (i) fifteen percent (15.0%) per annum or (ii) the maximum rate permitted by Applicable Law.
(c) Each Contribution Default Loan shall be recourse solely to the Defaulting Member’s Units. Contribution Default Loans (i) shall be repaid out of the Distributions that would otherwise be made to the Defaulting Member pursuant to this Agreement, and (ii) shall be deemed paid and applied on behalf of such Defaulting Member (A) first, to accrued and unpaid interest on all Contribution Default Loans (in the order of their original maturity date), (B) second, to the principal amount of such Contribution Default Loans (in the order of their original maturity date) and (C) third, to any Additional Capital Contribution of such Defaulting Member that has not been paid and is not deemed to have been paid. So long as a Contribution Default Loan is outstanding, the Defaulting Member shall have the right, at any time, to repay the Management CommitteeContribution Default Loan (and all accrued interest thereon) in whole or in part and without penalty. Upon the repayment in full of all Contribution Default Loans (but not upon their conversion as provided in Section 4.2(d)) made in respect of a Defaulting Member (and so long as the Defaulting Member is not otherwise a Defaulting Member), subject such Defaulting Member shall cease to approval by be a Supermajority in Interest Defaulting Member.
(d) At any time after the date that is ninety (90) days after the date a Contribution Default Loan is made, at the option of the Membersapplicable Non-Defaulting Member, may determine that (i) such Contribution Default Loan shall be converted into an Additional Capital Contributions Contribution of such Non-Defaulting Member in addition an amount equal to the Initial Members’ prior principal and unpaid interest on such Contribution Default Loan, and (ii) such amount shall be deemed contributed by the Non-Defaulting Member as an Additional Capital Contributions are needed to enable Contribution (a “Cram-Down Contribution”) and such Non-Defaulting Member’s Capital Account shall be increased by such amount. A Cram-Down Contribution shall be deemed an Additional Capital Contribution by the Company to conduct its business in accordance with Non- Defaulting Member making (or deemed making) such Cram-Down Contribution as of the Work Plan. On making date such a determination, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before Cram- Down Contribution is made or the date on which such additional Capital Contributions are needed. The notice shall set forth Contribution Default Loan is converted to a Cram- Down Contribution.
(e) At 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 time of a Capital Cram-Down 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 number of Units held by the Defaulting Member shall be automatically reduced by such number of Units that bears the same ratio to the number of Units held by the Defaulting Member as the Cram-Down Contribution bears to the aggregate amount of Capital Contributions made by the Defaulting Member throughout the term of the Company Valuation by determined as of the date the Cram-Down Contribution is made but prior to the Cram-Down Contribution (such number of Units, the “Cram-Down Units”), and (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 a Non-Defaulting Member after who made a Cram-Down Contribution shall be correspondingly increased by an amount equal to the issuance of Cram-Down Units and the additional Units resulting from such increase shall be Units.
(f) The rights and remedies of the Company and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect Members pursuant to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.this Section
Appears in 2 contracts
Sources: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Additional Capital Contributions. (a) From time In addition to timeeach Member’s Capital Contribution Commitment and guaranties as provided above, in the Management Committeeevent the Managing Committee determines that the Company requires additional financing for its operations and such financing is not reasonably available from third parties, subject to approval by then upon a Supermajority vote of a Majority 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 may require from time 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 time each Member shall be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given Contribution to the opportunity to make such additional Capital Contribution Company in proportion to such Member’s Percentage Interestpercentage of Membership Interest (a “Capital Call”). Upon payment Any request for additional Capital Contributions hereunder shall specify in detail the proposed use of an additional the funds subject to the Capital Call. If a Member fails to timely make a required Capital Contribution after a Capital Call (which shall be no sooner than twenty (20) days after the date of such Capital Call), the other Members by a written vote of a Majority in Interest delivered to the Company may exercise either of the options set forth below within thirty (30) days of the due date of such Capital Contribution (such options to be the sole remedy of the Company and the other Members for the failure of a Member to make the required 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 a Capital Call):
(i) the amount contributed by the other Member(s) shall be treated as loans to the Company Valuation by and shall be repayable to the loaning Member(s) (in proportion to their loans) with interest payable monthly in arrears from the date of such loans to the date of repayment at a rate equal to the higher of twelve percent (12%) per annum or five percent (5%) in excess of the Base Rate. Such loan(s) shall be repaid prior to any payment of any distributions of Net Cash Flow pursuant to Section 4.2 hereof and shall have a maturity date five years from the date made; or
(ii) the number amounts advanced by such other Members shall dilute the Membership Interest of Units outstanding immediately prior any Member who failed to such additional make its Capital Contribution. Immediately before issuing Units, Contribution pursuant to the Gross Asset Value Capital Call and increase the Membership Interest of the Companyother Members in accordance with the following formula (and such changed percentages shall apply for all purposes of this Agreement thereafter): each Member’s assets will Membership Interest percentage shall be adjusted equal to (a) its prior Capital Contributions plus the Capital Contribution made by it in a manner provided under the definition of Gross Asset Value in Appendix 1 attached heretoconnection with such Capital Call, 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 divided by each Member after the issuance of the additional Units and the total number of Units then outstanding.
(b) If the sum of all prior Capital Contributions plus the sum of all Capital Contributions made in connection with such Capital Call. provided, however, that where the additional capital funding is required for short-term cash flow needs and the other Member(s) fail to make the Capital Contributions pursuant to the Capital Call therefor, ARA agrees that it shall make such capital available in the form of a Member does loan pursuant to clause (i) above for a term not make an additional Capital Contribution to exceed sixty (60) days, and if such loan and accrued interest thereon is not paid in full on or before the sixtieth day after made, ARA shall exercise with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing unpaid amount either of the total amount of Noncontributing Member Capital Contributions not made options set forth in clauses (the “Additional Capital Shortfall”), i) and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible(ii) above.
Appears in 1 contract
Sources: Joint Venture Operating Agreement
Additional Capital Contributions. (a) From 8.2.1 No Class A Member shall be obligated to contribute additional capital to the Company. No Class A Member shall be permitted or authorized to make any additional Capital Contributions without the prior approval of the Manager. Additional Capital Contributions may be necessary to accomplish the purposes and objectives of the Company. Additional Capital Contributions may be made by the Class A Members when determined necessary, from time to time, in the Management Committee, subject to amounts and representing such Percentage Interest and within the time determined by the 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 PlanManager. 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 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 payable in proportion to such each Class A Member’s Percentage Interest. Upon payment If the then current Class A Members are unable or unwilling to meet the demand for Additional Capital Contributions, the Class A Members acknowledge that new Members may be added at the time additional capital is required on terms no more favorable than was offered to the existing Class A Members. The Class A Members acknowledge that their Membership Interests may change (including being diluted) from time to time as a result of an adding new Members to obtain Additional Capital Contributions. In the event that one or more Class A Members is unable or unwilling to contribute Additional Capital, then the Manager(s) may amend this Agreement to admit new Members on terms no more favorable than was offered to the existing Members. However, this Section is not for the benefit of any creditors of the Company. No creditor of the Company may obtain any right under this paragraph to make any claim that a Class A Member is obligated to contribute capital to the Company for the purpose of satisfying the Company’s creditors.
8.2.2 Such Class A Member or Members making Additional Capital Contributions shall receive a Capital Account credit for each 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 outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified and in the notice (a “Noncontributing Member”), amount that such contribution is made and the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”)related Percentage Interests, and Exhibits “1” and “2” shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio adjusted accordingly as to the amount of Additional Capital Shortfall as capital contributed and the Contributing Member’s Percentage Interest bears to the combined related Percentage Interests of for all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Sources: Operating Agreement (Benchmark Real Estate Investment Fund, LLC)
Additional Capital Contributions. If at any time (or from time -------------------------------- to time) the Board of Directors of the Company determines that funds in excess of the initial capital contributions of the Shareholders and Swedish and the Company's revenues from operations are required by the Company for its business or any of its obligations, expenses, costs, liabilities or expenditures, the Board of Directors may require the Shareholders and Swedish to make additional contributions to the Company as follows:
(a) From time For additional capital requirements up to timeFive Hundred Thousand Dollars ($500,000) in the aggregate during the term hereof, each Shareholder and Swedish shall make additional capital contributions to the Company in proportion to its relative ownership interest in the Company, on such date(s) set by the Board of Directors. Such contributions shall be made in cash, provided, however, that HFN and IMS shall have the right, in their sole discretion, to satisfy their additional contributions through the forgiveness of fees due to them from the Company for services rendered (e.g., for HFN, fees due ---- under the Management Committee, subject Services Agreement entered into pursuant to approval by a Supermajority in Interest Paragraph 3.5). If all of the MembersShareholders and Swedish satisfy the additional capital contributions required of them, 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 there shall be required no change in Stock ownership. If a Shareholder or Swedish fails to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plancapital contribution (a "Defaulting Shareholder"), 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(anon-defaulting party (a "Non-Defaulting Shareholder") shall be determined by dividing (i) entitled, in its sole discretion, to contribute its pro rata share of the Company Valuation by (ii) additional capital contribution of the Defaulting Shareholder. For purposes hereof, a Non-Defaulting Shareholder's "pro rata share" shall equal the percentage which the number of Units outstanding immediately prior shares of Stock owned by it bears 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 shares of Stock owned by each Member after the issuance all of the NonDefaulting Shareholders desiring to satisfy the Defaulting Shareholder's additional Units capital contribution. Further, each Non-Defaulting Shareholder shall, in return for its additional capital contribution (including any portion of a Defaulting Shareholder's contribution made by it), be issued by the Company additional shares of Stock at a value of $50,000 per share if the additional contribution is made during the first two (2) years of the term of this Agreement and, for contributions made thereafter, at fair market value per share on the date of the contribution, as determined by the appraisal consultants of the Company's regularly retained independent auditors (at the Company's expense), and the total number of Units then outstandingrelative Stock ownership shall be adjusted accordingly.
(b) If a Member does not make an The Company's additional Capital Contribution capital requirements over Five Hundred Thousand Dollars ($500,000) shall be met by loans to the Company from any or all of the Shareholders and/or Swedish. Such loans shall be classified as senior indebtedness, bear interest at the prime rate set by Northern Trust Bank, Chicago, Illinois, and be repaid in full by the Company before any distributions are made with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleStock.
Appears in 1 contract
Sources: Joint Venture Agreement (Integrated Medical Systems 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 Capital Contributions the funds 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital ShortfallContribution Date”)) and (iii) the amount to be contributed by each Member, and which amount shall specify a number be in proportion to each Member’s Interest on the date of the Cash Call. Within twenty (20) calendar days within which (the “Call Period”) after the date of the Cash Call, each Contributing Member may make shall contribute to the Company as an additional “Additional Capital Contribution, which shall not be less than an amount bearing ” the same ratio to funds requested in the amount of Additional Capital Shortfall as Cash Call. Until the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If Company has received the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall Contribution set forth in the Cash Call, all funds advanced to the Company by a Member in fulfillment of such Member’s Cash 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. Any Escrow Account established pursuant to the immediately preceding sentence shall be established using the employer identification number of the Member in whose benefit such Escrow Account is being established and shall be treated as fully contributed owned by 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 or the return of the entire Escrow Account to the Non-Defaulting Member or Members as possibleprovided in Section 4.3(b), and (ii) reported by such Member on its U.S. federal income tax return and not on the U.S. income tax return of the Company. The exclusive remedies for a Member’s failure to make an Additional Capital Contribution to capital in accordance with a Cash Call shall be those set forth in this Section 4.3, and no Member shall have any personal or recourse liability for the failure to satisfy a Cash Call.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Kennedy-Wilson Properties (IL))
Additional Capital Contributions. (a) From time The Company is obligated to timeoffer Units to the Members 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. Upon determination to seek additional Capital Contributions or upon a third party’s offer to purchase Units from the Company, the Management Committee, subject Board shall deliver to approval by the Members a Supermajority Notice of Additional Capital Contributions at least 30 days in Interest advance 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 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 Board within ten 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 Board 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 ten-day period from the delivery of the Notice of Additional Contributions, the Board shall give the other Members written notice of the uncommitted portion of the additional Capital Contribution sought and permit such other Members an additional ten days to commit to pay the uncommitted portion of the additional Capital ContributionContributions. HoweverIf the other Members decline or fail to respond during the ten-day period, except as contemplated by an applicable Work Planthen the Board may, each Member shall be given for the 90-day period following such other Members’ determination or failure to respond, offer to other Persons 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 remaining uncommitted 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 same terms as were available to the issuance of the additional Units and the total number of Units then outstandingMembers.
(b) If a Member does not make an Any additional Capital Contribution with respect that a Member is required or elects to which such Member has an option under Section 3.2(a) at make shall be made to the time Company in immediately available funds on or before the date specified 12111833.11 in the applicable notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which date shall not be less than an amount bearing the same ratio 30 days prior to the amount delivery of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all such notice). As of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributeddate hereof, the Management Committee may use no Member has any reasonable method to provide Members the opportunity commitments to make any future additional Capital Contributions until Contributions.
(c) The provisions of this Section 3.2 shall not apply in the Additional Capital Shortfall is as fully contributed as possiblecontext of the sale of the Company or other comparable transaction.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Par Pacific Holdings, Inc.)
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 (“▇▇▇▇▇▇▇ Mac”), the Federal National Mortgage Association (“▇▇▇▇▇▇ Mae”), their successors, or any other entity that in the future is a substantial and significant purchaser of such loans comparable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Additional Capital Contributions. (a) From time to timeUpon consent of 75% of the Managers, the Management CommitteeCompany may reasonably determine, subject in good faith, that additional funds are required or necessary to approval by a Supermajority in Interest satisfy any such financial obligation of the MembersCompany, may determine that Capital Contributions in addition to then the Initial Members’ prior Capital Contributions are needed to enable Managers making this determination shall notify the Company to conduct its business in accordance with the Work Plan. On making such Members by delivering a determination, the Management Committee shall give written notice of such determination to all Members at least thirty of the need of additional funding (30“Capital Requirement Notice”) days before and all Members shall contribute to the date on which Company such additional Capital Contributions are neededamount as may be so required and necessary. The notice Members 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 capital contributions in the same 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s capital contribution required that its then-existing respective Percentage Interest bears to the combined Percentage Interests of all Members. All contributions shall be made within ten (10) days after delivery of the Capital Requirement Notice.
(b) If only some Members provide an additional capital contribution as and when required pursuant to Section 2.04 or Section 2.03 (a), such Member(s) shall be deemed to be a Contributing Member, and the Member(s) which fail to timely provide any additional capital contribution as and when so required shall be deemed to be a Defaulting Member(s). In such an event (i) the Contributing Members. If ’ Capital Account shall be appropriately increased by the total amount of Additional Capital Shortfall the capital contribution so made. The Defaulting Members’ Percentage Interest shall be correspondingly decreased; and Distributable Cash shall thereafter be preferentially allocated and distributed to the Contributing Member(s) in accordance with Section 3.05 (a)(2), but no such preferential distribution shall affect or result in any adjustment of Percentage Interests of the Members.
(c) If any Member fails to timely make an additional capital contribution as and when required pursuant to Section 2.04 or Section 2.03 (a) and becomes a Defaulting Member, the Contributing Member may, at its sole discretion, but shall not be required to, advance the Defaulting Member’s share of capital required to be contributed to the extent any such amount is not so contributedcontributed by such Defaulting Member. Each such advance on behalf of a Defaulting Member shall be deemed to be a loan to the Defaulting Member, which loan shall bear interest at the Default Rate until paid, and which loan shall be deemed to be secured by a security interest in, and a first and paramount lien upon, the Management Committee may use any reasonable method to provide Members Defaulting Member’s interest in the opportunity Company.
(d) The members shall, upon the vote, approval, or consent of 75% of the Managers, have the option to make such additional Capital Contributions until contributions in the Additional Capital Shortfall is form of a loan to the company as fully contributed as possibleopposed to a capital contribution. Any loan shall provide for a per annum interest rate which conforms to Internal Revenue Regulations.
Appears in 1 contract
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest If any of the Members, may Managing Members shall reasonably determine that funds are required for a Necessary Expenditure, or in the event of a Preferential Distribution Non-Payment (as defined in the Series A Terms), such Managing Member shall have the right to make a Mandatory Capital Contributions in addition Call describing the amount and nature of the Necessary Expenditure or the aggregate amount of any payment default pursuant to the Initial Members’ prior Capital Contributions are needed to enable Series A Terms, in which event each of the Company to conduct its business in accordance with the Work Plan. On making such a determinationManaging Members shall, the Management Committee shall give written notice within twenty (20) days after receipt of such determination Mandatory Capital Call, fund a portion of the capital contribution required by such Mandatory Capital Call (which portion shall be equal to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth Member's Funding Percentage multiplied by the amount of additional such Mandatory Capital Contribution neededCall). Notwithstanding anything to the contrary herein, except for the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment payment of why alternative financing, notably unsecured or secured debt financing, is not, any Preferential Distribution Non-Payment (as defined in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work PlanSeries A Terms), no Managing Member shall be required to make an additional contribute or lend any funds to the Company (and no Mandatory Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall Call for a Necessary Expenditure may be given the opportunity to make such additional Capital Contribution in proportion issued 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 5.2 or otherwise (i) if such Member has fully funded its Capital Commitment (whether or not the Company Valuation by other Members have fully funded their Capital Commitments), (ii) the number of Units outstanding immediately prior in response to such additional a Capital Contribution. Immediately before issuing UnitsCall made at any time after December 31, the Gross Asset Value 2000 (irrespective of the Company’s assets will be adjusted in a manner provided under the definition amounts previously contributed) or (iii) at any time after an initial public offering 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 Shares by each Member after the issuance of the additional Units and the total number of Units then outstandingWCPT.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall have authorized a Capital Call, the Manager shall make such Capital Call describing in brief detail the use of proceeds of such Capital Call, in which event each of the Managing Members shall, within five (520) days after said failure. notify each other Member (eachreceipt of such Capital Call, fund a “Contributing Member”) in writing portion of the total amount of Noncontributing Member capital contribution required by such Capital Contributions not made Call (the “Additional Capital Shortfall”), and which portion shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio equal to such Member's Funding Percentage multiplied by the amount of Additional such Capital Shortfall as Call).
(c) Following receipt of a Capital Call in compliance with the Contributing Member’s Percentage Interest bears requirements of this Section 5.2, each of the Managing Members shall contribute to the combined Percentage Interests Company the amount applicable to such Member as set forth in the Capital Call delivered pursuant to this Section 5.2 on the due date specified in such notice.
(d) Upon any conversion by a Saracen Member of all any Series A Preferred Membership Units into Membership Units, such Saracen Member shall have the right to contribute up to $7,500.00 to the Company as an additional capital contribution, PROVIDED, however, that such capital contribution shall be in addition to and shall not reduce the conversion price payable in connection with such conversion. In exchange for such capital contribution, Membership Units shall be issued based upon the Deemed Value Per Membership Unit on the date of such capital contribution. Notwithstanding the Contributing Members. If foregoing, in no event shall (i) the total aggregate amount of Additional capital contributions made by all Saracen Members pursuant to this Section 5.2(d) exceed $50,000.00, and (ii) Membership Units be issued for more than $50,000.00 of capital contributions pursuant to this Section 5.2(d).
(e) Notwithstanding anything contained in this Section 5.2 to the contrary, Holding Co. will fund its Capital Shortfall is not so contributedCommitment in the manner and amount described in the definition of "Capital Commitment" contained herein in connection with any capital contribution required for the potential acquisition of properties commonly known, the Management Committee may use any reasonable method to provide Members the opportunity to make additional respectively, as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, after which Holding Co. shall have no further Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCommitment.
Appears in 1 contract
Sources: Operating Agreement (Wellsford Real Properties Inc)
Additional Capital Contributions. (a) From time The Company is obligated to timeoffer Units to the Members 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. Upon determination to seek additional Capital Contributions or upon a third party's offer to purchase Units from the Company, the Management Committee, subject Board shall deliver to approval by the Members a Supermajority in Interest Notice of the Members, may determine that 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 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 Board 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 Board 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 Board 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 Board 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 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 remaining uncommitted 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 same terms as were available to the issuance of the additional Units and the total number of Units then outstandingMembers.
(b) If a Member does not make an Any additional Capital Contribution with respect that a Member is required or elects to which such Member has an option under Section 3.2(a) at make shall be made to the time Company in immediately available funds on or before the date specified 18 in the applicable notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which date shall not be less than an amount bearing the same ratio 30 days prior to the amount delivery of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all such notice). As of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributeddate hereof, the Management Committee may use no Member has any reasonable method to provide Members the opportunity commitments to make any future additional Capital Contributions until Contributions.
(c) The provisions of this Section 3.2 shall not apply in the Additional Capital Shortfall is as fully contributed as possiblecontext of the sale of the Company or other comparable transaction.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Par Pacific Holdings, Inc.)
Additional Capital Contributions. (a) From time to time, Upon the Management Committee, subject to approval by a Supermajority in Interest occurrence of any 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 events set forth in Section 5(a) below, as determined by 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)Board, the Company shall issue may require that the Shareholders advance or contribute additional Units amounts 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital ShortfallCall”), and the Shareholders shall, in proportion to their respective percentage of ownership of Shares, advance or contribute such amounts in cash to the Company within fourteen (14) days of receipt of a Capital Call notice from the Company. At the election of the Board, a Capital Call may be structured as a loan to the Company pursuant to a surplus note or as a purchase of additional Shares issued by the Company, in each case on such terms and conditions as may be established by the Board. The terms and conditions of a Capital Call established by the Board shall specify a number apply to all Shareholders in an identical manner and shall be in compliance with all applicable statutes, laws or regulations. Except as otherwise approved by the unanimous affirmative vote of days within which each Contributing Member may make an additional Capital ContributionDirector, which shall not be less than an amount bearing the same ratio to the amount of Additional the Capital Shortfall Call shall not exceed the amount that is reasonably required to cure the event(s) triggering a Capital Call.
a. The events that may trigger a Capital Call are as follows:
(i) Company’s failure or anticipated failure to meet the Contributing Memberstatutory minimum capital and surplus requirements of any applicable jurisdiction;
(ii) Company’s Percentage Interest bears failure or anticipated failure to maintain the minimum amount of capital as determined by the statutory risk-based capital (RBC) requirements to avoid any regulatory action under any applicable jurisdiction;
(iii) Company’s failure or anticipated failure to maintain at least an AM Best A- rating due to capital insufficiency; and
(iv) Company’s failure or anticipated failure to stay in compliance with any other applicable statute, law, regulation or regulatory directive or order due to insufficient surplus funds. The determination whether an event described in Section 5(a) above has occurred shall be made by the Board.
b. In the event any Shareholder fails to participate in a Capital Call as set forth in this Section 5 (“Nonparticipating Shareholder”), then the Board may treat such failure as a Purchase Option event under Section 7, and the remaining Shareholders may, at least in proportion to their respective percentage of ownership of all Shares held by all participating Shareholders:
(i) in the event of a Capital Call through an issuance of additional Shares, purchase the additional Shares allotted to the combined Percentage Interests Nonparticipating Shareholder; and
(ii) in the event of all of a Capital Call through a surplus note loan, advance the Contributing Members. If amount allocated to the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleNonparticipating Shareholder.
Appears in 1 contract
Sources: Shareholders 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 Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required fees otherwise payable 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 reNon-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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Failure to Make Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContributions.
Appears in 1 contract
Sources: Limited Liability Company Agreement (CaliberCos Inc.)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Member may determine that Capital Contributions in addition transfer to the Initial Members’ prior Capital Contributions are needed Company trade receivables in exchange for cash and/or an increased Membership Interest in the Company. In such event, (i) the amount of cash to enable be disbursed to the Company to conduct its business contributing Member shall be determined 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 PCA and so disbursed and (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 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 principal amount of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated trade receivables contributed exceeds the cash disbursed by an applicable Work Plan, no the Company to the contributing Member shall be required to make an additional accounted for as a Capital ContributionContribution by the contributing Member. However, except as contemplated by an applicable Work Plan, The Membership Interest of each Member shall be given the opportunity to make such automatically adjusted upon any additional Capital Contribution in proportion to such made by a Member’s Percentage Interest. Upon payment the written request of an additional Capital Contribution pursuant to this Section 3.2(a), the Company shall issue additional Units to each contributing any 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) Exhibit A shall be determined by dividing (i) revised to reflect the Company Valuation by (ii) the number current Membership Interest 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 outstandingMember.
(b) If To facilitate accounting, the Members hereby agree that transfers of receivables to the Company will be made in exchange for consideration, in cash and a deemed capital contribution, in an amount equal to the outstanding principal balance of the receivables at the time of the transfer. However, at any time, upon five days’ prior written notice to the Company and each other Member, any Member does not make (the “Petitioning Member”) may request an additional Capital Contribution adjustment to the Membership Interests reflected on Exhibit A if the Petitioning Member can establish, to the satisfaction of all other Members and the Company, that, with respect to which receivables transferred to the Company by the Petitioning Member in the month prior to such written notice, adjustments to its Membership Interest, coupled with cash such Member has an option under Section 3.2(a) at received for such receivables, were inadequate compensation for such receivables. If the time specified in other Members and the notice (a “Noncontributing Company agree with the Petitioning Member”), the Management Committee shallMembers’ Membership Interests shall be so adjusted. If the parties cannot agree whether the Membership Interests should be adjusted, within five (5) days after said failurethe Petitioning Member can require the Company to hire an independent expert to make such determination. notify each Such expert shall be selected by the Company and shall be approved by the Petitioning Member. If a mutually-agreeable expert cannot be selected, then the Petitioning Member shall select one independent expert, and the Members other than the Petitioning Member (eachshall select a second independent expert, and such experts shall select a “Contributing Member”) in writing third expert who shall determine the merits of the total amount Petitioning Member’s request. The fees of Noncontributing all such experts shall be paid by the Petitioning Member Capital Contributions if the decision is made not made (to adjust the “Additional Capital Shortfall”)Membership Interests in response to the Petitioning Member’s request, and shall specify a number of days within which each Contributing be paid by the Members other than the Petitioning Member may make if an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall adjustment is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblemade.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Celanese Americas CORP)
Additional Capital Contributions. (a) From time In the event that the Company requires capital to timefinance the development or operation of its business, in excess of the Initial Contributions and funds otherwise available to the Company (including loans available on economically favorable terms from third parties), the Management Committee, subject to approval by a Supermajority in Interest of Company may seek additional capital contributions from 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 Investors in accordance with this Section 4.2 (any and all amounts contributed to the Work Plancapital of the Company, directly or indirectly, by or on behalf of IFX or ITI pursuant to this Section 4.2 shall constitute "ADDITIONAL CONTRIBUTIONS" of such Investor); PROVIDED, HOWEVER, that no Investor shall be obligated to make Additional Contributions; PROVIDED, FURTHER that no Investor shall be entitled to make aggregate Additional Contributions in excess of three million dollars ($3,000,000) unless and until it receives a Capital Request (as defined herein). On making such In determining an Investor's Additional Contributions, all amounts contributed by IFX (through IFX/EN) to the capital of the Company on behalf of ITI that consist of proceeds from purchases made hereunder by ITI of shares of IFX Common Stock shall constitute Additional Contributions of ITI, and not of IFX.
(b) The Company may request Additional Contributions by delivering to the Investors a determinationwritten request specifying, in reasonable detail, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before facts supporting the date on which such additional Capital Contributions are needed. The notice shall set forth request for Additional Contributions, the amount of additional Capital Additional Contribution needed, the purpose for which it is needed, requested and 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 Investor desiring to make such additional Additional Contribution must respond (any such request shall constitute a "CAPITAL REQUEST"). Each Additional Contribution shall be funded on a date (the "FUNDING DATE") mutually agreed by the Company and the Investor making such Additional Contribution. In the event that both Investors deliver written notice to the Company, within 10 Business Days after delivery of any Capital Contribution in proportion Request, agreeing to such Member’s Percentage Interest. Upon payment make a requested Additional Contribution, each Investor shall be entitled to fund it Proportionate Share of an additional Capital Contribution pursuant the requested Additional Contribution.
(c) In the event that IFX agrees to this Section 3.2(a)make any Additional Contributions, the Company shall issue to IFX (or to a designated Affiliate of IFX) one additional Units share of Company Common Stock for each $2.00 of Additional Contributions made by IFX. In the event that ITI agrees to each contributing Membermake any Additional Contributions, 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 ITI shall be deemed to have subscribed to purchase from IFX such number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value shares 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio IFX Common Stock that is equal to the amount of such Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Contribution divided by $2.00, and (ii) IFX shall cause to be contributed to the combined Percentage Interests of all capital of the Contributing MembersCompany, for and on behalf of ITI, such aggregate subscription price. If Notwithstanding the total amount of Additional Capital Shortfall is not so contributedforegoing, the Management Committee may use any reasonable method to provide Members the opportunity ITI's right to make Additional Contributions and to receive additional Capital shares of IFX Common Stock therefor shall terminate upon the closing of ITI's exercise of the Purchase Right. Certificates representing shares of Company Common Stock or IFX Common Stock issuable in connection with any Additional Contributions until shall be issued and delivered to the applicable Investor on the Funding Date of such Additional Capital Shortfall is Contribution. Upon payment of any Additional Contributions, ITI shall be deemed to represent and warrant to IFX that the "Investment Representations" set forth in Section 2.2 are accurate and complete as fully contributed as possibleof the Funding Date and, upon the request of IFX, ITI shall execute and deliver to IFX an officer's certificate confirming the same.
Appears in 1 contract
Sources: Subscription and Joint Venture Agreement (International Technology Investments L C)
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 shall constitute an “Additional Initial 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 Funding Notice” pursuant to this Section 3.2(a4.5(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 All amounts funded by Woodfield pursuant to this Section 3.2(a4.5(a) shall be determined constitute a portion of Woodfield’s Initial Capital. All amounts funded by dividing CNL pursuant to this Section 4.5(a) shall constitute a portion of CNL’s Initial Capital. Within ten (i10) Business Days following the Company Valuation by date of delivery of an Additional Initial Capital Funding Notice (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Unitsin each case, 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 “Additional Initial 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing MemberRequest Date”), CNL and Woodfield shall contribute to the Management Committee shallCompany, within five (5) days after said failure. notify each other Member (eachin proportion to their then respective Percentage Interests, a “Contributing Member”) in writing of as Additional Initial Capital, the total amount of Noncontributing Member Capital Contributions not made (so required, up to the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional CNL Maximum Initial Capital Contribution, which in the case of CNL, and up to the Woodfield Maximum Initial Capital Contribution, in the case of Woodfield. Notwithstanding the foregoing, an Additional Initial Capital Funding Notice shall not be less than an amount bearing required for CNL’s Additional Initial Capital that is due simultaneously with the same ratio to Construction Loan Closing as described above, and CNL shall contribute such Additional Initial Capital at the amount of Additional Construction Loan Closing without any accompanying Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContribution by Woodfield.
Appears in 1 contract
Sources: Limited Liability Company Agreement (CNL Growth Properties, Inc.)
Additional Capital Contributions. If:
(ai) From time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that Capital Contributions Company requires funds in addition to the Initial Members’ prior Capital Contributions amounts provided in Section 4.2(a) and the Governance Board has determined in accordance with Schedule 6.4 that such additional capital contributions are needed necessary or desirable, or
(ii) the Governance Board determines that additional capital contributions are necessary (A) to enable the Company to conduct its business in accordance with the Work Plan. On making such a determinationcomply with, or to maintain compliance with, the Management Committee business policies referred to in Section 11.2(a) related to employee health and safety, environment, and food and product safety, or (B) to sustain the base capacity of the Facility or (C) to enable the Company to perform the Take-over Work (the amount of any additional capital contributions that is from time to time determined to be necessary under either clause (i) or (ii) of this Section 4.2 is referred to herein as an “Additional Required Capital Contribution Amount”), then the Company shall give written notice (the “Cash Call”) to each Member setting forth in reasonable detail (x) the amount and purpose of such determination to all Members at least thirty the Additional Required Capital Contribution Amount; (30y) days before the date on which such additional Capital Contributions the funds are needed. The notice shall set forth the amount of additional Capital Contribution neededrequired, 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) no sooner than 30 days after said failure. notify each other Member (each, a “Contributing Member”) in writing receipt of the total amount of Noncontributing Member Capital Contributions not made such notice (the “Additional Capital ShortfallContribution Date”), ; and shall specify a number of days within which (z) the amount to be contributed by each Contributing Member may make an additional Capital ContributionMember, which shall not amount (the “Full Share Amount”) will be less than an amount bearing the same ratio in proportion to the amount of Additional Capital Shortfall as the Contributing each Member’s Membership Interest Percentage Interest bears to on the combined Percentage Interests of all date of the Contributing MembersCash Call. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method On or prior to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall Contribution Date, each Member shall have the right to contribute to the Company an amount up to the Full Share Amount, as specified in the Cash Call (the amount so contributed by any Member is referred to herein as fully contributed an “Additional Capital Contribution”). Until the Company has received an amount equal to the Additional Required Capital Contribution Amount, as possibleset forth in the Cash Call, all funds advanced to the Company by a Member in fulfillment of such Member’s Cash 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. Any Escrow Account established pursuant to the preceding sentence shall be 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 such Member for all purposes, including U.S. federal income tax purposes. The exclusive remedies for a Member’s failure to make an Additional Capital Contribution in accordance with a Cash Call shall be those set forth in this Section 4.2, and no Member shall have any personal or recourse liability for the failure to satisfy a Cash Call.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Imperial Sugar Co /New/)
Additional Capital Contributions. It is the intent of the Members that:
(ai) From time to time, the Management CommitteeCompany, subject to approval the other provisions of this Agreement regarding Major Decisions and the admission of additional Members, may attempt to pre-sell the Property with all entitlements in place, and the Members will use their best efforts to obtain same, and the Members acknowledge that they may have to fund the costs and expenses for the Company to obtain the required entitlements and to purchase the Property; and
(ii) subject to the other provisions of this Agreement regarding Major Decisions, the Company will maximize, to the extent reasonably feasible, the amount of a loan to obtain the funds required for the purchasing, leasing and development of the Property that the Company shall borrow from one or more institutional lenders such as commercial banks, insurance companies, pension funds, mortgage conduits and the like, with such loan being secured by a Supermajority mortgage encumbering the Company’s interest in Interest the Property, and/or mezzanine financing, and being on commercially reasonable terms approved by the Members as a Major Decision. The Company shall use its best efforts to borrow funds from a lender who will, subject to the approval of the Members as a Major Decision, accept either a pro rata individual or corporate guarantee or other collateral (e.g., letter of credit) in lieu of a joint and several guarantee from the principals or a related or Affiliated entity of the Members. If the Company is unable to borrow such funds or such funds are not sufficient to develop the Project, may determine that then, upon the approval of the Members as a Major Decision, the Members shall make a pro rata (in accordance with their respective Percentage Interests) Additional Capital Contributions in addition Contribution, which shall be contributed to the Initial Members’ prior Company to cover such shortfall. If the Additional Capital Contributions are needed approved, each Member shall respond to enable the Company to conduct its business request for Additional Capital Contributions within fifteen (15) Business Days of such request being made by the Manager. Additional Capital Contributions shall be made in accordance with the Work Plan. On making such a determination, following procedure:
(a) Each Member shall contribute to the Management Committee shall give written notice capital 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 notCompany, in the opinion of the Management Committeecash, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Planits pro rata share, 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 each 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 Additional 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 requested.
(b) If a Member does not fails to make an additional any required Additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at (the time specified in the notice (a “Noncontributing Non-Contributing Member”), the Management Committee shall, within five other Member(s) (5) days after said failure. notify each other Member (each, a the “Contributing Member”) in writing shall have the right to make such Non-Contributing Member’s share of the total amount of Noncontributing Additional Capital Contribution to the Company which the Non-Contributing Member Capital Contributions not made failed to make (the “Additional Capital ShortfallShortfall Contribution”), in which case the amount of the Shortfall Contribution shall be deemed to have been contributed to the Company by the Non-Contributing Member and the amount of the Shortfall Contribution shall specify be treated as a number of days within which loan by the Contributing Member(s) to the Non-Contributing Member. In the case where there is more than one Contributing Member, each Contributing Member may shall be entitled to make an additional Capital Contribution, which shall not be less than an amount bearing a prorata share of the same ratio to Shortfall Contribution based on the amount of Additional Capital Shortfall as the proportion that each Contributing Member’s Percentage Interest bears to the combined aggregate Percentage Interests of all Contributing Members (i.e., excluding the Percentage Interest of the Non-Contributing Member). The terms and conditions of such loan (the “Contribution Loan”) shall be as follows:
(i) simple interest shall accrue at a per annum rate equal to the Prime Rate plus four percent (4%);
(ii) interest shall be paid monthly in arrears on the first day of each month on the unpaid principal balance of such loan;
(iii) the Contributing Member shall have the right to accelerate the maturity of such loan if the interest is not paid within five (5) days after the due date;
(iv) the principal of, and interest on, such loan shall be due and payable one hundred twenty (120) days after the making of such loan unless such loan is accelerated pursuant to Subsection (iii) or extended by the Contributing Member, in its sole discretion, before maturity;
(v) the Non-Contributing Member shall pay all reasonable costs and expenses, including reasonable attorney’s fees, incurred by the Contributing Member in collecting the principal of, and interest on, such loan; and
(vi) until the principal of, and interest on, such loan has been repaid in full, any distributions of Net Cash Flow or Terminating Capital Proceeds which would otherwise have been made to the Non-Contributing Member shall be made to the Contributing Member as repayment of such loan.
(c) In the event (and only in the event that) any Contribution Loan has not been repaid in full within one hundred twenty (120) days of the date the Contribution Loan is made unless such loan has been either accelerated or extended, then at any time after the accelerated or extended maturity date, the Contributing Member may elect, in its sole and absolute discretion, to proceed under Subparagraph (i) or (ii) below.
(i) Upon thirty (30) days’ prior written notice to the Non-Contributing Member, each Contributing Member may elect to treat the outstanding principal balance of the Contribution Loan as an Additional Capital Contribution by the Contributing Member, and the Percentage Interest of each Member shall thereupon be recalculated as of the effective date of such Additional Capital Contribution (i.e., the 30th day after such written notice is delivered to the Non-Contributing Member) (the “Computation Date”) to account for such Additional Capital Contribution and the Percentage Interests shall thereupon be further adjusted as set forth below. Upon converting the outstanding principal balance of the Contribution Loan into an Additional Capital Contribution in accordance with the immediately preceding sentence, the amount of the Shortfall Contribution deemed to have been contributed to the Company by the Non-Contributing Member shall be deemed eliminated. Additionally, the Percentage Interest of the Non-Contributing Member will then be reduced as of the Computation Date (but not to a Percentage Interest below one percent (1%)) by a percentage equal to the product of the Non-Contributing Member’s Percentage Interest as adjusted in accordance with the first sentence of this Subparagraph multiplied by ten percent (10%), with the resulting product expressed as a percentage added to the Contributing Member’s Percentage Interest as adjusted in accordance with the first sentence of this Subparagraph as of the Computation Date (but such Contributing Member’s Percentage Interest as further adjusted in accordance with this sentence shall not exceed ninety-nine percent (99%)). For example, if each of three Members initially contributed One Hundred Thousand Dollars ($100,000.00) in capital and there is an additional capital call of One Hundred Thousand Dollars ($100,000.00) from each Member, with two Contributing Members proportionately making the One Hundred Thousand Dollar ($100,000.00) Additional Capital Contribution for a Non-Contributing Member, and the entire principal amount of the resulting two Contribution Loans is converted into Additional Capital Contributions by the Contributing Members, then, after the Additional Capital Contributions, the Non-Contributing Member’s Percentage Interest would be sixteen and two-thirds percent (16⅔%) (i.e., $100,000.00/$600,000.00) before the ten percent (10%) reduction and fifteen percent (15%) [16⅔% – (16⅔% x 10%)] after the ten percent (10%) reduction, with each of the Contributing MembersMember’s Percentage Interest being forty-two and one-half percent (42½%) (41⅔% + 5/6%) after the ten percent (10%) reduction. Accrued and unpaid interest on any Contribution Loan which is converted into an Additional Capital Contribution as provided above shall not be converted into an Additional Capital Contribution and shall remain outstanding and payable as provided in Sections 4.3(b) and 4.3(c) above; provided, however, that, if such accrued interest is not paid in full upon demand, the Member making such demand may at any time thereafter exercise its rights only under Subparagraph (ii) below with respect to the then outstanding amount of such accrued interest.
(ii) The Contributing Member may elect to make written demand upon the Non-Contributing Member for payment in full of such Contributing Member’s Contribution Loan, including accrued and unpaid interest attributable to such Contributing Member’s Contribution Loan, and upon failure of the Non-Contributing Member to pay the Contribution Loan and accrued and unpaid interest thereon in full within ten (10) days of such demand, to treat such failure to pay as an event of default under the Contribution Loan, in which case the Contributing Member shall have all available remedies at law or in equity (including the right to foreclose under the security interest granted pursuant to Section 4.3(ii)(d)).
(iii) Until a Contributing Member has elected to proceed under Subparagraph (i) or (ii) above, such Contributing Member’s Contribution Loan shall remain outstanding and shall bear interest and be repaid as provided in Section 4.3(b) above. The rights of a Contributing Member under Subparagraph (i) or (ii) above shall be mutually exclusive and a Contributing Member electing to proceed under Subparagraph (i) or (ii) above shall waive its right to proceed under the subparagraph not so elected as to any particular Contribution Loan.
(d) Each Member (the “Grantor”) hereby grants to the other Members a security interest (within the meaning of the Uniform Commercial Code in effect in the jurisdiction in which the Company is located) in the Grantor’s entire Membership Interest as security for the Grantor’s obligations to pay the principal of, interest on, and other amounts payable in connection with, any and all Contribution Loans to such Member (collectively, the “Secured Obligations”). If a Member defaults in paying the total amount of Additional Capital Shortfall is not so contributedSecured Obligations, the Management Committee Contributing Member who makes a Contribution Loan to the Non-Contributing Member pursuant to this Section 4.3 shall have the right to exercise all of the rights and remedies of secured parties under the Uniform Commercial Code in effect in the jurisdiction in which is located the Non-Contributing Member’s chief place of business, with respect to the Non-Contributing Member’s Membership Interest. Within five (5) days after a request by any Member, the Members shall sign and deliver to each other financing statements and continuation statements as the other Member may use any reasonable method reasonably request for the purpose of perfecting its security interest. This Agreement is intended to provide Members constitute a security agreement within the opportunity meaning of the Uniform Commercial Code. Upon the conclusion of the sale of the Non-Contributing Member’s Membership Interest pursuant to make additional Capital Contributions until Article 9 of the Additional Capital Shortfall is Uniform Commercial Code, the purchaser at the sale shall be an Assignee, but shall not become a Member with respect to the Non-Contributing Member’s Membership Interest unless admitted as fully contributed as possiblesuch pursuant to Article IX of this Agreement.
Appears in 1 contract
Additional Capital Contributions. (a) From If at any time, and from time to time, additional cash in excess of Net Cash Flow and other funds available to the Management CommitteeVenture is required by the Venture (i) in order to pay any Operating Expenses, subject to approval by a Supermajority or (ii) in Interest respect of the MembersProject, including in order to pay the costs of maintenance, repairs, capital improvements, replacements or other expenses necessary to comply with lease or other contractual obligations of the Subsidiary REIT (or any subsidiary thereof that owns the Project) and to keep the Project in good condition and repair, then the Manager may determine that make a Capital Contributions Call for additional capital from the Members in addition proportion to their respective
1. The Manager shall provide prompt written notice to the Initial Members’ prior Capital Contributions are needed to enable Members upon the Company to conduct its business in accordance with the Work Plan. On Manager making any 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 Member Loan 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 upon BH Redwood making any 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 outstandingVenture.
(b) If the Manager makes a Member does not make an Loan as set forth in Section 3.3(a) above, the Manager shall cause such Member Loan to be repaid (including principal and any unpaid accrued interest) promptly upon the other Member(s) making the requested additional Capital Contribution with respect Contributions to which such Member has an option under Section 3.2(aLoan relates. If such other Member(s) at does not make the time specified in requested additional Capital Contribution by the notice later of (a “Noncontributing Member”), the Management Committee shall, within i) five (5) days Business Days after said failure. notify each other Member the Manager has provided written notice that BH Redwood has made its corresponding Capital Contribution and (each, a “Contributing Member”ii) in writing the expiration of the total amount thirty-five (35) day period referred to in Section 3.3(a) and thereafter becomes a Non-Funding Member, the Manager shall cause (i) such Member Loan to remain a Member Loan, or (ii) the portion of Noncontributing such Member Loan representing its requested additional Capital Contributions not made Contribution (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an together with any unpaid accrued interest thereon) to be treated as such additional Capital Contribution, which shall and cause the portion of such Member Loan representing the requested Capital Contribution of the Non-Funding Member(s) (together with any unpaid accrued interest thereon) to be treated as Substitute Capital pursuant to Section 3.4(c), such election to be made within thirty (30) days of the occurrence of the Funding Event with respect to such Non-Funding Member by delivering notice of such election to each Member. In the event that the Manager does not be less than make such an amount bearing election within thirty (30) days after the same ratio date a Member becomes a Non-Funding Member pursuant to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributedprior sentence, the Management Committee may use any reasonable method Manager shall be deemed to provide Members the opportunity have elected to make additional Capital Contributions until the Additional Capital Shortfall is treat such amount as fully contributed as possiblea Member Loan.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I 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 or permitted to make an any additional Capital Contribution. However, Contributions to the Company except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make such additional Capital Contribution provided 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 outstandingArticle 3.
(b) If a Member does not Members may, in the case of clause (i) below, and shall, in the case of clauses (ii), (iii) and (iv) below, from time to time make an additional Capital Contribution with respect Contributions to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member Company (each, a “Contributing Member”an "Additional Capital Contribution"):
(i) at such time and in such amounts as the Board of Managers may determine to offer to the Members;
(ii) in writing connection with the contribution of an Acquired Retail Brokerage Business in accordance with Section 3.4;
(iii) in connection with the total amount payment and satisfaction of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio One Time Costs to the amount of Additional extent described in Section 3.2(d) below; and
(iv) in connection with a deemed Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. Contribution in accordance with Section 7.2(a)(ii)(B).
(c) If the total amount Board of Additional Capital Shortfall is not so contributed, Managers determines that the Management Committee may use any reasonable method to provide Members shall be offered the opportunity to make additional Additional Capital Contributions until in accordance with Section 3.2(b)(i), the Board of Managers shall offer to the Members by written notice the opportunity to make Additional Capital Shortfall Contributions pro rata in proportion to their Percentage Interests immediately prior to the time of contribution in order to maintain their respective Percentage Interests. Each Member shall have 15 Business Days following delivery of such notice to notify the Board of Managers in writing of its decision whether or not to make such Additional Capital Contribution, in whole or in part. Thereafter, the Board of Managers shall notify each Member of the amount of its required Additional Capital Contribution and the date such Additional Capital Contribution shall be due. The election by any Member not to exercise its rights under this Section 3.2(c) to make an Additional Capital Contribution in any one instance shall not affect its rights as to any subsequent proposed Additional Capital Contribution.
(d) The Board of Managers shall from time to time determine the amount of One Time Costs (the "Uncalled One Time Cost Amount") that (x) the Company has actually incurred for which no Capital Contribution has been previously made by the Members and (y) the Board of Managers estimates in good faith that the Company will incur in the next 60 days. Upon identifying such Uncalled One Time Cost Amounts, the Board of Managers shall call on each Member to make an Additional Capital Contribution in the amount of the Uncalled One Time Cost Amount multiplied by such Member's Percentage Interest as of the date of such notice by delivering a notice to each Member, which notice shall identify the relevant One Time Costs and the Uncalled One Time Cost Amount. Each Member shall pay its share of such Uncalled One Time Cost Amount within 15 Business Days following delivery of such written notice, by wire transfer of immediately available funds to a bank account identified by the Company in such written notice. If at any time the Board determines that it has made calls in respect of One Time Costs in excess of actual One Time Costs, and it is unlikely that any additional One Time Costs will be incurred or required in the next 90 days, the Company shall return the excess amount to the Members by redeeming and cancelling a number of Membership Interests issued in respect thereof equitably in proportion to the Capital Contributions actually made by each such Member with respect to such Uncalled One Time Cost Amounts.
(e) If at any time a Member has incurred any One Time Costs ("Member-Incurred Costs") which were not otherwise reimbursed pursuant to this Section 3.2(e), the Member shall submit to the Company (with a copy to each of the other Members) an itemized schedule of such Member-Incurred Costs together with such supporting detail as fully the Company may reasonably request. Within 15 Business Days after receipt of such schedule and supporting detail, the Company shall reimburse such Member for such Member-Incurred Costs by wire transfer of immediately available funds to a bank account designated by such Member. Following such payment, the amount of such Member-Incurred Costs shall be treated as an Uncalled One Time Cost Amount and shall be subject to the Capital Contribution provisions of Section 3.2(d).
(f) Additional Capital Contributions shall be made (i) in the case of Section 3.2(b)(i) or (iii), in cash or, with the approval of the Board of Managers, in assets or other properties and (ii) in the case of Section 3.2(b)(ii), through the contribution of either assets or equity interests in an entity that is disregarded for federal income tax purposes (or such other equity interests that the Non-Combining Member may agree to be so contributed) of the relevant Acquired Retail Brokerage Business or, in the case of the Non-Combining Member, in cash as provided in Section 3.4. Except as otherwise provided in Section 3.4, the value of all properties and assets contributed to the Company shall be determined as possibleof the date of contribution in accordance with Section 3.2(g).
(g) The "fair market value" of any non-cash Additional Capital Contributions (other than with respect to an Acquired Retail Brokerage Business) to be valued pursuant to this Section 3.2(g) shall be the price that an unrelated third party would pay if it were to acquire in an arm's-length transaction the property proposed to be so valued as determined by the unanimous vote of the Board of Managers in accordance with this Section 3.2(g). The Managers shall attempt in good faith to agree on any such fair market value and on the Appraised Value of the Company whenever required for purposes of Section 3.3 (and, when acting for such purpose, the Board of Managers shall be deemed to be the "Appraiser" referred to in the definition of "Appraised Value"). If the Managers shall have failed to agree upon any such fair market value within 30 days after any such non-cash Additional Capital Contribution is proposed to be made, such fair market value and/or Appraised Value shall be determined by a nationally recognized independent investment banking firm selected by the Board of Managers (with the approval of at least one Manager appointed by the Prudential Members) and such determination shall be accepted and adopted as the unanimous determination of the Board of Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Prudential Financial Inc)
Additional Capital Contributions. (ai) From time No Member shall be assessed or be required to timemake any additional Capital Contributions to the Company.
(ii) No Member shall be required to lend any funds to the Company and no Member shall have any personal liability for the payment or repayment of any Capital Contribution by or to any other Member. Third Amended and Restated Limited Liability Company Agreement | 12
(iii) If any additional funds or other property are required by the Company for any business purpose relating to the operation, management or financing of the Company’s business, as determined by the Managing Member in its sole but reasonable discretion, the Management Committee, subject to approval by a Supermajority Managing Member shall inform all Members in Interest writing of the Membersamount of funds or description of property required by the Company, may determine that Capital Contributions in addition and the Managing Member’s reasons why such funds or property are required, and each Member shall have the opportunity to either make a loan of money (upon the “Loan Terms” as defined below, unless other terms are otherwise agreed by the holders of at least seventy-five percent (75%) of the Percentage Interests) to the Initial Members’ prior Capital Contributions are needed Company in its pro rata share (either at the time a loan is made to enable the Company to conduct by the Managing Member or at any time while such loan is outstanding by purchasing such pro rata share from the Managing Member), or contribute its business pro rata portion of such funds or property as an additional Capital Contribution, in each case in accordance with Section 13.7. For the Work Plan. On making such a determinationavoidance of doubt, upon the execution of this Agreement, the Management Committee Non-Managing Members shall give written have the right to purchase their pro rata portion of any then outstanding loan from the Managing Member to the Company or its Subsidiaries, promptly upon notice of such determination to all Members at least thirty (30) days before the date on which Managing Member. To the extent that any such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution neededmade other than on a pro rata basis, the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment Managing Member shall revise Exhibit A of why alternative financing, notably unsecured or secured debt financing, is not, this Agreement to reflect an increase in the opinion Membership Interest of the Management Committee, appropriate in lieu contributing Members that fairly and equitably reflects the value 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 its additional Capital Contribution in proportion relation to such Member’s Percentage Interestthe aggregate amount of all Capital Contributions made by the Members. Upon payment For the avoidance of an additional Capital Contribution pursuant to this Section 3.2(a)doubt, in no event shall the Company accept additional funds or other property for the purpose of causing a reduction in a Non-Managing Members’ economic interest in the Company or any Subsidiary of the Company, and without first complying with the requirements of Section 13.7. As used in this section, “Loan Terms” 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) mean: Each loan shall be determined represented by dividing a promissory note accruing interest (compounded annually) on the unpaid principal amount thereof at the greater of (i) the Company Valuation by ten percent (10%) per annum, or (ii) two percent (2%) over the number prime rate (which for this purpose shall mean the rate of Units outstanding immediately prior interest announced or otherwise established by Bank of America N.A. from time to such additional Capital Contributiontime as its prime commercial rate) in effect on the date of the loan. Immediately before issuing UnitsThe promissory note shall be payable from Net Cash Flow in accordance with Section 7.1(a)(i), with any principal and unpaid interest due not later than the Gross Asset Value second anniversary of the loan. The promissory note shall be guaranteed by the Company’s Subsidiaries and the promissory note and guaranty shall be secured by all 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 Company and the total number of Units then outstandingSubsidiaries.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Sources: Equity Purchase Agreement (Morgans Hotel Group Co.)
Additional Capital Contributions. (a) From time to time, If the Management Committee, subject to approval by a Supermajority in Interest of Company closes under the Members, may determine that Capital Contributions in addition Pinnacle 2 Contribution Agreement pursuant to the Initial Members’ prior Capital Contributions are needed terms of this Agreement and Pinnacle 2 Sponsor Affiliate causes the Pinnacle 2 Property to enable be contributed to the Company to conduct its business in accordance with the Work Plan. On making such a determinationCompany, 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 contribute to Pinnacle 2 Property Owner substantially concurrently therewith, in each contributing Membercase, with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant to the Pinnacle 2 Contribution Agreement and/or the terms of this Agreement, then, on the Pinnacle 2 Closing Date, Pinnacle 2 Sponsor Affiliate shall, provided no adjustment has been made pursuant to the terms of Section 3.2(a) shall 4.02(c), be determined by dividing deemed to have made an Initial Capital Contribution to the Company in an amount equal to (i1) the Company Valuation by positive difference between the Pinnacle 2 Property Allocated Value and the Pinnacle 2 Loan in exchange for Pinnacle 2 Sponsor Affiliate’s contribution of the Pinnacle 2 Property pursuant to the Pinnacle 2 Contribution Agreement minus (ii2) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing UnitsProposition 13 Reserve Amount, as the Gross Asset Value of the Company’s assets will same may 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 outstandingpursuant to Section 4.06.
(b) If a Member does not make an at any time or from time to time after any of the Initial Capital Contributions have been contributed, ▇▇▇▇▇▇ reasonably determines that additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice funds (a “Noncontributing MemberShortfall”) are required for any Company (or any Property Owner LLC) expense that (i) is expressly set forth in the then effective Budget and Operating Plan or is otherwise expressly approved in writing in advance by all Members, each acting in its sole discretion (each, a “Budgeted Expense”), or (ii) constitutes (A) a Non-Discretionary Expense not reflected in the Management Committee then effective Budget and Operating Plan, but permitted to be incurred under Section 7.03(b)(ii), and/or (B) a variance, Emergency Expenditure or other amount permitted to be incurred under Section 8.06 (each of the foregoing, a “Permitted Unbudgeted Expense” and, collectively, “Permitted Unbudgeted Expenses”), then all Members shall make further capital contributions in an amount, in the aggregate, equal to such Shortfall. If so requested by ▇▇▇▇▇▇ each Member shall, within five ten (510) days Business Days after said failure. notify each other receipt of ▇▇▇▇▇▇’▇ written request therefor (which request shall state the amount of the subject Shortfall and shall provide a reasonably detailed explanation of the purpose for which such additional funds are being requested), contribute its pro rata share of such Shortfall based on such Member’s Percentage Interest.
(c) If any Member (eachthe “Non-Contributing Member”) fails to timely make the Capital Contributions (or any portions thereof) required by 4.02(b), then one or more of the other Members that is not an Affiliate of the Non-Contributing Member (each being a “Contributing Member”) may, but shall not be obligated to, fund to the Company an amount equal to such capital contribution (i.e., the Non-Contributing Member's share, in writing addition to such Contributing Member's share; provided that if there is more than one Contributing Member who wishes to so contribute the Non-Contributing Member's share, such Contributing Member(s), in the aggregate, must contribute the entire amount of such share in proportion to their thenexisting Percentage Interests relative to one another), and the Contributing Member(s) shall have the following option: (X) to treat such amount so contributed (i.e., the Contributing Member’s share and, if applicable, the Non-Contributing Member’s share) as a Shortfall Loan by making the “Shortfall Loan Election” (as provided in Section 4.02(d)), or, if no Shortfall Loan Election is made, (Y) whether or not the Contributing Member contributes the Non-Contributing Member’s share, electing to dilute the Percentage Interest of the total amount Non-Contributing Member, in which case the Percentage Interest of Noncontributing Member each of the Members shall be adjusted to equal the percentage equivalent of the quotient determined by dividing (1) the positive difference, if any, between (a) the sum of (i) 100% of the aggregate Capital Contributions not (excluding Substituted Capital Contributions (as hereinafter defined)) then or therefore made by such Member to the Company, plus (ii) 150% of the Substituted Capital Contributions then or theretofore made by such Member to the Company (the excess of 150% of such Member’s Substituted Capital Contributions over such Member’s Substituted Capital Contributions is referred to herein as the “Additional Capital ShortfallExcess Amounts”), and minus (b) the Excess Amounts attributable to the Substituted Capital Contributions then or theretofore made by the other Member to the Company, by (2) 100% of the aggregate Capital Contributions (including without limitation Substituted Capital Contributions) then or theretofore made by all of the Members to the Company. As used herein, the term “Substituted Capital Contribution” shall specify a number of days within which each mean an Additional Capital Contribution made by the Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio equal to the amount that the Non-Contributing Member failed to timely contribute pursuant to Section 4.02(b). An example of Additional Capital Shortfall as the operation of such calculation is set forth on Exhibit G attached hereto. If a Contributing Member’s Percentage Interest bears is increased pursuant to this Section 4.02(c), then (A) its Capital Contributions, as previously adjusted, shall, in addition to being increased by the combined amount of Capital Contributions (including without limitation ordinary Capital Contributions and Substituted Capital Contributions) made by such Member, also be increased by an amount equal to an additional 100% of the Substituted Capital Contributions made by such Member, and the Capital Contributions of the other Member shall be adjusted so that the ratios of the Member’s Capital Contributions immediately after such adjustment are equal to their Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleimmediately after such adjustment.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Hudson Pacific Properties, Inc.)
Additional Capital Contributions. (a) From Additional Capital Contributions by Preferred Members, Members and Economic Interest Holders.
3.2.1 Except as otherwise provided in this Agreement, no Preferred Member, Member or Economic Interest Holder shall be permitted to make any Capital Contributions to the Company without the consent of the Majority in Interest and no Preferred Member, Member or Economic Interest Holder shall be required to make a Capital Contribution without such Person’s approval.
3.2.2 If, at any time and from time to time, the Management Committee, subject to approval Company requires additional capital (as determined by a Supermajority Majority in Interest), the Company shall provide to all Preferred Members, Members and Economic Interest Holders written notice thereof (a “Required Notice”), which Required Notice shall at least specify (i) the aggregate amount of the additional capital so required, (ii) each Preferred Member’s, Member’s and Economic Interest Holder’s pro rata (treating the Preferred Interests on an as converted basis) share of such additional capital, the percentage such Person’s Percentage Interests bears to the aggregate Percentage Interest of all Members and Economic Interest Holders multiplied by the Membersaggregate additional capital required) and (iii) the date by which such additional capital must be contributed by such Preferred Member, may determine that Capital Contributions in addition Member or Economic Interest Holder 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 determinationCompany, the Management Committee which date shall give written notice of such determination to all Members at least not be less than thirty (30) days before nor more than forty-five (45) days following delivery of the date on which such Required Notice. Each Preferred Member, Member and Economic Interest Holder shall thereafter have the option to make additional Capital Contributions (in cash or cash equivalents) on a pro rata (treating the Preferred Interest on an as converted basis) basis in accordance with their respective Percentage Interests pursuant to such terms and conditions as are needed. The notice contained in the Required Notice, and shall set forth advise the Company fourteen (14) days prior to the date specified in the Required Notice of its determination whether or not to make such Capital Contributions.
3.2.3 If any Preferred Member, Member or Economic Interest Holder (a “Non-Contributing Member”) elects not to make any Capital Contribution specified in a Required Notice (the aggregate amount of such Capital Contributions being referred to herein as the “Deficit Amount”), then any Preferred Member, Member or Economic Interest Holder that has elected to make the additional Capital Contribution neededpermitted to be made by it under such Required Notice (each a “Contributing Member”) may, upon written notice received from the purpose for which it is neededCompany, 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, elect 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 writing to make an additional Capital ContributionContribution equal to the Deficit Amount. HoweverIf one or more Contributing Members (each, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity “Electing Member”) elect 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)Paragraph 3.2.3, the Company shall issue additional Units to then 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 Electing Members 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.
(b) If a Member does not make an additional Capital Contribution (an “Extra Contribution”), pro rata (treating the Preferred Interest on an as converted basis) in accordance with respect their respective Percentage Interests, the sum of which shall equal the Deficit Amount.
3.2.4 Upon any contribution of additional Capital Contributions pursuant to which such Member has this Paragraph 3.2 (an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing MemberAdjustment Event”), the Management Committee shallPercentage Interest (on an as converted basis for the Preferred Members) of each Preferred Member, within five Member and Economic Interest Holder shall be adjusted to equal a fraction, stated as a percentage, the numerator of which shall equal the sum of (5i) days after said failure. notify each other Member all additional Capital Contributions (each, a “Contributing Member”) in writing net of any liabilities of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an assumed by the Company or which are secured by any property contributed by such Contributing Member to the Company) made by such Member pursuant to such Adjustment Event (including, without limitation, any additional Capital Contribution, which shall not be less than an amount bearing Contribution made pursuant to Paragraph 3.2.3) plus (ii) the same ratio to the amount product of Additional Capital Shortfall as the (x) such Contributing Member’s Percentage Interest bears immediately prior to such Adjustment Event multiplied by (y) the net fair market value of the Company immediately prior to the combined Percentage Interests Adjustment Event (either (A) as determined by the unanimous consent of all the Members or (B) using the Appraised Fair Market Value) (the “Company FMV”)) and the denominator of which shall equal the sum of (1) the Company FMV and (2) the aggregate Capital Contributions (net of any liabilities of the Contributing Member assumed by the Company or which are secured by any property contributed by such Contributing Member to the Company) made by all Contributing Members pursuant to, or concurrently with, such Adjustment Event and that all Preferred Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee Members and Economic Interest Holders may use any reasonable method to provide Members the opportunity thereafter be required to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleunder Paragraph 3.2.2.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Wise Metals Group LLC)
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 Additional Capital Contribution Date, such Member’s pro rata share of the aggregate Additional Capital Contributions specified in such Additional Capital Contribution Request.
(a) If at any time or times either Member shall fail to timely make any Additional Capital Contribution which such Member is obligated to make under this Section 5.02 (such additional Member being referred to herein as a “Non-Contributing Member”), and such failure shall continue for a period of ten (10) Business Days after notice of such failure from the other Member (such Member that has timely contributed its pro rata share of the Additional Capital Contribution in proportion question being referred 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (herein as a “Noncontributing Contributing Member”), the Management Committee shallrights and remedies set forth below in this Section 5.02(b) shall apply, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing all of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing cumulative and non-exclusive with respect to each other; provided, that such rights and remedies in the same ratio to the amount of Additional Capital Shortfall as aggregate shall constitute the Contributing Member’s Percentage Interest bears sole and exclusive remedies with respect the Non-Contributing Member’s failure to the combined Percentage Interests of all of the Contributing Members. If the total amount of make such Additional Capital Shortfall is not so contributed, the Management Committee may use Contribution. A Contributing Member shall give notice of any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.such election or elections under this
Appears in 1 contract
Sources: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.)
Additional Capital Contributions. (a) From time to timeExcept as otherwise provided in Sections 2.2(b), the Management Committee2.2(c), 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 (3010.8(b) 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 Plan12.9, no Member shall will be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity Contributions (“Additional Capital Contributions”) 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.
(b) If a Member does not make an additional Capital Contribution with respect the cash required by the Company to which such Member has an option under Section 3.2(a) at the time specified satisfy operating and maintenance expenses or to engage in the notice extension, improvement, or expansion of the Anadarko Contributed Assets exceeds its then available cash reserves (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Cash Shortfall”), and shall specify a number of days within which each Contributing then the Managing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio cash calls to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Memberscover such Cash Shortfall. If the total amount Managing Member makes such cash calls, then (i) if the Class A Member so elects (within 30 days after notice of such cash call), the Class A Member shall make Additional Capital Shortfall is not so contributedContributions of cash in an amount equal to five percent (5%) of such Cash Shortfall, and (ii) the Management Committee may use any reasonable method to provide Members the opportunity to Managing Member shall make additional Additional Capital Contributions until of cash equal to the excess of the Cash Shortfall over amounts elected to be contributed by the Class A Member under clause (i) immediately preceding.
(c) The Managing Member, or the Withdrawing Class B Member, shall make any Additional Capital Shortfall is Contributions required to be made pursuant to Sections 9.6(c) and 11.4(b) of the Master Formation Agreement. The Class A Member, or the Withdrawing Class A Member, shall make any Additional Capital Contributions required to be made pursuant to Section 9.6(c) of the Master Formation Agreement. Any Additional Contribution made by the Withdrawing Class A Member pursuant to this Section 2.2(c) shall be treated for federal income tax purposes as fully contributed having been made by the Class A Member and any Interest issued by the Company as possiblea result of such Additional Contribution shall be issued to the Class A Member. Any Additional Contribution made by the Withdrawing Class B Member pursuant to this Section 2.2(c) shall be treated for federal income tax purposes as having been made by the Managing Member and any Interest issued by the Company as a result of such Additional Contribution shall be issued to the Managing Member.
(d) The Members may make Additional Capital Contributions in addition to those required to be made in Sections 2.2(b), 2.2(c), 10.8(b), and 12.9 only with consent of all Members, in which event the Company shall issue to the contributing Member additional Interests with such terms as may be unanimously agreed to by the Members.
Appears in 1 contract
Additional Capital Contributions. (a) From 8.2.1 No Class A Member shall be obligated to contribute additional capital to the Company, whether pursuant to a Capital Call by the Manager or otherwise. No Class A Member shall be permitted or authorized to make any additional Capital Contributions without the prior approval of the Manager. Additional Capital Contributions may be necessary to accomplish the purposes and objectives of the Company. Additional Capital Contributions may be made by the Class A Members when determined necessary, from time to time, in the Management Committee, subject to amounts and representing such Percentage Interest and within the time determined by the 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 PlanManager. 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 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 payable in proportion to such each Class A Member’s Percentage Interest. Upon payment If all of an additional the then current Class A Members are unable or unwilling to meet the demand for Additional Capital Contribution pursuant to this Section 3.2(a)Contributions, the Company shall issue Class A Members acknowledge that new members may be added at the time additional Units capital is required on terms no more favorable than was offered to each contributing Member, with each new Unit being issued for its fair market valuethe existing Class A Members. The fair market value Class A Members acknowledge that their Membership Interests may change (including being diluted) from time to time as a result of an additional Unit issued pursuant adding new Members to obtain Additional Capital Contributions. In the event that one or more Class A Members is unable or unwilling to contribute Additional Capital, then the Manager(s) may amend this Section 3.2(a) shall be determined by dividing (i) Agreement to admit new Members on terms no more favorable than was offered to the Company Valuation by (ii) existing Members. However, this section is not for the number benefit of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value any creditors 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 No creditor of the Members based on Company may obtain any right under this paragraph to make any claim that a Class A Member is obligated to contribute capital to the total number Company for the purpose of Units held by each Member after satisfying the issuance of the additional Units and the total number of Units then outstandingCompany’s creditors.
(b) If 8.2.2 Existing Class A Members that make Additional Capital Contributions pursuant to a Member does not make an additional Capital Call shall receive a Capital Account credit for each such Additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified and in the notice (a amount that such contribution is made and their relaged Percentage Interests, as reflected on Exhibit “Noncontributing Member1” and “2”), shall be adjusted accordingly based upon the Management Committee shall, within five (5) days after said failurecapital contributed. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Existing Class A Members that do not make Additional Capital Contributions not made (when asked by the “Additional Capital Shortfall”), Manager to do so hereby agree and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined acknowledge that their Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method be diluted in proportion to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContributions made by existing or newly admitted Members.
Appears in 1 contract
Additional Capital Contributions. (a) From Additional Capital Contributions (“Additional Capital Contributions”) may be called for from the Members by the Manager from time to time, time as and to the Management Committee, subject to approval by a Supermajority in Interest of the Members, may determine that extent capital is necessary. Such Additional Capital Contributions shall be requested in addition an amount for each Member equal 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 product 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 the aggregate Capital Contribution needed, the purpose called for which it is needed, the date multiplied 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 that Member’s Percentage Interest, as defined in Section 5.3. Upon payment Such Additional Capital Contributions, if payable, shall be payable by the Members to the Company upon the earlier of (i) twenty (20) days after written request from the Company, or (ii) the date when the Capital Contribution is required, as set forth in a written request from the Company.
(b) BGF may elect, but shall not be required, to fund its proportionate share of the Additional Capital Contributions requested pursuant to Section 5.2(a). Any amount that BGF does not fund shall be an “Unfunded BGF Contribution.” BGF acknowledges that BGF may be diluted pursuant to this Section 5.2 to the extent it does not fund all of its proportionate share of the requested Additional Capital Contributions, and BEMT and/or SOIF III funds all or a portion of an additional Capital Unfunded BGF Contribution pursuant to this Section 3.2(a5.2, and BGF hereby consents to such dilution.
(c) BEMT and SOIF III shall be required to fund their proportionate share of the Additional Capital Contributions plus any Unfunded BGF Contribution (the “Required Funding Amount”) in an amount for each of BEMT and SOIF III equal to the product of the Required Funding Amount multiplied by the ratio of that Member’s Capital Contributions to aggregate Capital Contributions made by BEMT and SOIF III only.
(d) If BEMT or SOIF III (a “Defaulting Member”) fails to make a Capital Contribution that is required as provided in Section 5.2(c) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), then BEMT, if SOIF III is the Defaulting Member, or SOIF III, if BEMT is the Defaulting Member (a “Non-Defaulting Member”), in addition to any other remedies each may have hereunder or at law, shall have one or more of the following remedies, provided that the Non-Defaulting Member has made the Capital Contribution required to be made by it under Section 5.2(c):
(i) to advance to the Company on behalf of, and as a loan to the Defaulting Member, an amount equal to the Default Amount to be evidenced by promissory note(s) in form reasonably satisfactory to the Non-Defaulting Member (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be credited with the amount of such Default Amount attributable to a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the non-failing Member. Any Default Loan shall bear interest at the rate of twenty (20%) percent per annum, but in no event in excess of the highest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from the Non-Defaulting Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall accrue and compound on a quarterly basis. A Default Loan shall be prepayable, in whole or in part, at any time or from time to time without penalty. Any such Default Loans shall be with full recourse to the Defaulting Member and shall be secured by the Defaulting Member’s interest in the Company including, without limitation, such Defaulting Member’s right to Distributions. In furtherance thereof, upon the making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the Non-Defaulting Member and agrees to promptly execute such documents and statements reasonably requested by the Non-Defaulting Member to further evidence and secure such security interest. Any advance by the Non-Defaulting Member on behalf of a Defaulting Member pursuant to this Section 5.2(d)(i) shall be deemed to be a Capital Contribution made by the Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Member hereunder shall be applied first to payment of any interest due under any Default Loan and then to principal until all amounts due thereunder are paid in full. While any Default Loan is outstanding, the Company shall issue additional Units be obligated to each contributing pay directly to the Non-Defaulting Member, with each new Unit being issued for application to and until all Default Loans have been paid in full, the pro rata amount of (x) any Distributions payable to the Defaulting Member, and (y) any proceeds of the sale of the Defaulting Member’s Interest in the Company;
(ii) subject to any applicable thin capitalization limitations on indebtedness of the Company, to treat its fair market valueportion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the Non-Defaulting Member and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. The fair market value If both BEMT and SOIF III have loans outstanding to the Company under this provision, such loans shall be payable to such Member in proportion to the outstanding balances of an additional Unit issued such loans to such Member at the time of payment. Any advance to the Company pursuant to this Section 3.2(a5.2(d)(ii) shall not be determined treated as a Capital Contribution made by dividing the Defaulting Member;
(iii) in lieu of the remedies set forth in subparagraphs (i) or (ii), revoke its portion of such Additional Capital Contribution, whereupon the portion of the Capital Contribution made by the Non-Defaulting Member shall be returned within ten (10) days with interest computed at the Default Loan Rate by the Company.
(e) Notwithstanding the foregoing provisions of this Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company Valuation or any other Person shall be in default (or with notice or the passage of time or both, would be in default) in any material respect under any loan, indenture, mortgage, lease, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company (or any of its Subsidiaries) or any of its properties or assets is or may be bound, (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Unitsany other Member, the Gross Asset Value Company or any of its Subsidiaries shall be insolvent or bankrupt or in the Company’s assets will process of liquidation, termination or dissolution, (iii) any other Member, the Company or any of its Subsidiaries shall be adjusted subjected to any pending litigation (x) in a manner provided under which the definition amount in controversy exceeds $500,000, (y) which litigation is not being defended by an insurance company who would be responsible for the payment of Gross Asset Value any judgment in Appendix 1 attached heretosuch litigation, and Capital Accounts will reflect (z) which litigation if adversely determined could have a material adverse effect on such new Gross Asset Value. Following other Member and/or the issuance Company or any of additional Unitsits Subsidiaries and/or could interfere with their ability to perform their obligations hereunder or under any Collateral Agreement, if necessary(iv) there has been a material adverse change in (including, but not limited to, 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.
(bfinancial condition of) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each any other Member (eachand/or its Affiliates) which, a “Contributing in Member”) in writing ’s reasonable judgment, prevents such other Member (and/or its Affiliates from performing, or substantially interferes with their ability to perform, their obligations hereunder or under any Collateral Agreement. If any of the total amount of Noncontributing foregoing events shall have occurred and any Member Capital Contributions elects not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional a Capital Contributions until Contribution on account thereof, then any other Member which has made its pro rata share of such Capital Contribution shall be entitled to a return of such Capital Contribution from the Additional Capital Shortfall is as fully contributed as possibleCompany.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Multifamily Growth REIT, Inc.)
Additional Capital Contributions. (a) From time Each Budget shall set forth any Capital Contributions which are expected to timebe necessary to fund Partnership Costs during the Fiscal Year covered by such Budget, the Management Committeewhich Capital Contributions shall be designated as Required Contributions and/or Non-Required Contributions, subject to approval by a Supermajority in Interest of the Members, may determine that depending upon whether such Partner has made Capital Contributions in addition to the Initial Members’ prior excess of its Maximum Capital Contribution Obligations. All Capital Contributions are needed shall be deemed to enable be Required Capital Contributions until such time as the Company applicable Partner has contributed an amount in cash or property (excluding its Pre-Closing Capital Contribution, Closing Capital Contribution, and contributions under the applicable Contribution Agreement) having an Agreed Value equal to conduct its business Maximum Capital Contribution Obligation, and thereafter all such Capital Contributions with respect to such Partner will be Non-Required Capital Contributions. Each Partner shall make all such Capital Contributions within 30 days of the date provided for in the Budget, so long as a Capital Call is given therefor, except that either Partner may elect not to make all or any portion of a Non-Required Contribution. All such Capital Contributions shall be made pro-rata in accordance with the Work Plan. On making such Partners' Percentage Interests, except to the extent a determinationPartner elects not to make all or any portion of a Non- Required Contribution.
(b) Subject to the limitations of this Agreement, if the Management Committee determines that additional Capital Contributions are necessary from time to time to fund Partnership Costs in excess of that provided for in any then relevant Budget or pursuant to any prior Capital Call, the Management Committee shall give written notice cause the Chief Executive Officer to deliver a Capital Call to each Partner. Subject to the election of such determination any Partner not to make all Members at least thirty (30) days before or any portion of a Non-Required Contribution, the date Partners shall make all additional Capital Contributions pro rata in proportion to their Percentage Interests on which the Payment Date specified in the Capital Call requesting such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution neededContributions; provided, the purpose for which it is neededhowever, 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, that no Member 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 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.
(b) If a Member does not -------- ------- make an additional Capital Contribution with respect to which such Member has in an option under Section 3.2(a) at the time specified amount in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing excess of the total amount which, when taken together with the aggregate amount of Noncontributing Member all previous Capital Contributions (excluding, without duplication, those made pursuant to Section ------- 3.02 and the Pre-Closing and Closing Capital Contribution) made by such Partner, ---- exceeds such Partner's Maximum Capital Contribution Obligation.
(c) In the event that Tune elects not made (to make any portion of a Capital Contribution or fails to do so on or before the “Additional Capital Shortfall”)relevant Payment Date, and shall specify a number of days within which each Contributing Member MTVNS and/or any other Person(s) designated by MTVNS may make an such portion of Capital Contribution (or any portion thereof) and, thereafter the Percentage Interests of each Partner shall be adjusted so that they are in proportion to the relative cumulative Capital Contributions by each Partner; provided, -------- however, that no such additional Non-Required Capital ContributionContribution shall be made ------- if such additional Non-Required Capital Contribution and the related adjustment to the Percentage Interests would, which shall not on a pro forma basis, cause the Percentage Interest for the Tune Partnership Interest to be less than an amount bearing the same ratio lesser of (i) 5% and (ii) the percentage equal to one-half of the excess of (x) ten percent over (y) the Percentage Interest of any portion of the Tune Partnership Interest Transferred to a Person other than a Permitted Transferee. In the event the circumstances described in the proviso of the preceding sentence apply, MTVNS and/or any other Person(s) designated by MTVNS may loan the Partnership the amount of Additional such Capital Shortfall as the Contributing Member’s Percentage Interest bears Contribution (or portion thereof), in which event such loan(s) shall be subject to the combined Percentage Interests of all of the Contributing MembersSection 3.05. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.------------
Appears in 1 contract
Additional Capital Contributions. (a) From time to timeIn the event that the Company or any of its Subsidiaries has additional funding needs, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Board may determine to request that Capital Contributions in addition the Shareholders make additional capital contributions to the Initial Members’ prior Company or such Subsidiary (each, an “Additional Capital Contributions are needed to enable Contribution”) and authorize the Company to conduct its business issuance of New Shares in connection therewith (“ACC Shares”) in accordance with the Work Planprocedures set forth in this Section 4.2. On making such a determinationFor the avoidance of doubt, the Management Committee neither Shareholder shall give written notice of such determination have any obligation to all Members at least thirty (30) days before the date on which such additional make Additional Capital Contributions are needed. The notice shall set forth 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 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 Company pursuant to this Section 3.2(a)4.2; provided that Buyer shall have an obligation to fund its Proportionate Contribution Entitlement with respect to any Capital Call issued prior to December 31, the Company shall issue additional Units 2026 up to each contributing Member, an aggregate amount from Buyer (together with each new Unit being issued for its fair market value. The fair market value of an additional Unit issued pursuant any capital contributions made by Buyer to this Section 3.2(aNewco) shall be determined by dividing equal to (i) the Company Valuation by $160,000,000 minus (ii) 30% of any Additional Capital Investment (as defined in 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 outstandingPurchase Agreement).
(b) If the Board determines to request that the Shareholders make Additional Capital Contributions to the Company, the Company shall, or shall cause its applicable Subsidiary to, issue a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice written request (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing MemberCapital Call”) in writing to each of the total amount Shareholders for the making of Noncontributing Member Capital Contributions not made (the “such Additional Capital Shortfall”), and Contributions. The Capital Call shall specify a number of days within which each Contributing Member may make an additional Capital Contribution(i) the book value per Share, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If (ii) the total amount of Additional Capital Shortfall is not so contributedContributions requested from all Shareholders, (iii) the Management Committee may use total number of ACC Shares proposed to be issued to the Shareholders in connection therewith (which number shall be based on the book value per Share, in the event that each Shareholder elects to contribute all of its Shareholder’s Proportionate Contribution Entitlement, and fair market value as determined in accordance with Section 2.15(d)(iii), in the event that any reasonable method Shareholder elects to provide Members contribute less than all of its Shareholders’ Proportionate Contribution Entitlement), (iv) the opportunity to make additional Capital Contributions until amount of the Additional Capital Shortfall Contribution requested from each Shareholder (with respect to each Shareholder, its “Proportionate Contribution Entitlement”), (v) the number of ACC Shares proposed to be issued to each Shareholder in connection therewith and (vi) whether the purpose of such Capital Call is to fund Necessary Expenses required by the Company during the Contribution Option Period and which the Company reasonably anticipates are in excess of the funds reasonably available to the Company or its applicable Subsidiary from other sources, together with a brief description of any such Necessary Expenses and the other sources of funding considered but which were unavailable.
(c) The total amount of Additional Capital Contributions requested pursuant to a Capital Call and each Shareholder’s Proportionate Contribution Entitlement shall be calculated so as fully to ensure that, if each Shareholder made an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement, the ACC Shares issued would not result in any change to either Shareholder’s Pro Rata Percentage. Each Shareholder acknowledges that by declining to make an Additional Capital Contribution pursuant to a Capital Call in the full amount of such Shareholder’s Proportionate Contribution Entitlement, its Pro Rata Percentage may be diluted in accordance with the terms of this Section 4.2, unless otherwise agreed by the Parties.
(d) Within forty-five (45) days following receipt of a Capital Call (the “Contribution Option Period”), each Shareholder shall send a written notice to the Company either (i) declining to make an Additional Capital Contribution pursuant to the Capital Call or (ii) agreeing to make part or all of the Shareholder’s Proportionate Contribution Entitlement and stating what portion of the Shareholder’s Proportionate Contribution Entitlement it shall make. Any Shareholder that does not send a notice within the Contribution Option Period shall be deemed to have declined to make any Additional Capital Contribution pursuant to the Capital Call.
(e) Within five (5) Business Days following the expiration of the Contribution Option Period, the Company shall give written notice (a “Contribution Notice”) to each Shareholder specifying (i) the amount of each Shareholder’s Proportionate Contribution Entitlement, (ii) the amount of the Additional Capital Contribution that each Shareholder agreed to make, and (iii) in the event that any Shareholder elects to contribute less than all of its Shareholder’s Proportionate Contribution Entitlement, the fair market value per Share and the corresponding total number of ACC Shares proposed to be issued to the Shareholders in connection with such Capital Call. In the event that one Shareholder does not elect to make an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement (a “Non-Contributing Shareholder”) and the other Shareholder does elect to make an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement (a “Contributing Shareholder”), then such Contributing Shareholder shall have the right to increase the amount of its Additional Capital Contribution to include all or any portion of the Non-Contributing Shareholder’s Proportionate Contribution Entitlement that the Non-Contributing Shareholder declined to make (such amount, a “Residual Contribution Amount”).
(f) Within ten (10) Business Days following receipt of a Contribution Notice showing a Residual Contribution Amount (the “Residual Exercise Period”), any Contributing Shareholder shall send a written notice to the Company either (i) declining to increase the amount of its Additional Capital Contribution to include any portion of the Residual Contribution Amount or (ii) exercising its right to increase its Additional Capital Contribution and stating the portion of the Residual Contribution Amount by which it desires to increase its Additional Capital Contribution. If such Shareholder does not send a notice within the Residual Exercise Period, it shall be deemed to have waived its right to increase the amount of its Additional Capital Contribution pursuant to Section 4.2(e).
(g) At the expiration of the Contribution Option Period or the Residual Exercise Period, as applicable, any Shareholder electing to make an Additional Capital Contribution pursuant to Section 4.2(d) and Section 4.2(f) (an “Electing Shareholder”) may make such Additional Capital Contribution and the Company may issue ACC Shares in connection therewith without any further obligation to any other Shareholder. Any Electing Shareholder shall make such Additional Capital Contribution within ten (10) Business Days following its receipt of a Contribution Notice or within ten (10) Business Days following the receipt of any and all required regulatory approvals, whichever is later (such date, the “ACC Deadline”), and the Company shall issue ACC Shares in connection therewith as promptly as practicable thereafter; provided, that, in the event that the making of such Additional Capital Contribution would result in an Investor Shareholder holding a twenty percent (20%) or greater direct interest in the Company (a “Deconsolidating Capital Call”), such Investor Shareholder shall be entitled to revoke its election to make an Additional Capital Contribution and shall have no obligation to make such Additional Capital Contribution, but such Investor Shareholder may elect to provide a shareholder loan to the Company in the amount required for such Deconsolidating Capital Call at the interest rate to be mutually agreed by Investor and the Company. In addition, and subject to the foregoing limitation in the event of any Deconsolidating Capital Call, the Company and any Electing Shareholder shall take all such other actions as may be reasonably necessary to complete such Additional Capital Contribution, including entering into such additional agreements as may be necessary or appropriate.
(h) With respect to any Capital Call to fund Necessary Expenses required by the Company during the Contribution Option Period and for which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources, any Shareholder may elect, or cause an Affiliate of such Shareholder, to contribute part or all of its and any other Shareholder’s Proportionate Contribution Entitlement of the Additional Capital Contributions in respect of the related request therefor (collectively, the “Emergency Advance”) and such Emergency Advance will be treated as a loan from such Shareholder or any Affiliate of such Shareholder to the Company, provided that a Shareholder must notify the other Shareholders in writing of the amount of such Emergency Advance at least five (5) Business Days prior to the contribution thereof. If a Shareholder or an Affiliate of such Shareholder has elected to contribute all or part of its or another Shareholder’s Proportionate Contribution Entitlement pursuant to this Section 4.2(h), upon contribution of the Proportionate Contribution Entitlement by each Shareholder as an Additional Capital Contribution, the Company shall pay directly to the Shareholder or an Affiliate of such Shareholder making the Emergency Advance an amount equal to the Emergency Advance made by such Shareholder or an Affiliate of such Shareholder plus an additional amount of interest thereon equal to ten percent (10%) per annum from the date of the Emergency Advance to the date of repayment of such Emergency Advance, and, provided, further, if the other Shareholders do not elect to contribute to the Company its Pro Rata Percentage of the amount of the Emergency Advance (together with interest thereon as aforesaid), then the amount such Shareholder or an Affiliate of such Shareholder has contributed (including both its and any other Shareholders’ portion thereof), including interest thereon as possibleaforesaid, will be designated as an Additional Capital Contribution and the Company may issue ACC Shares in connection therewith without any further obligation to any other Shareholder.
Appears in 1 contract
Sources: Shareholders' Agreement (DPL LLC)
Additional Capital Contributions. 2.5.1. It is not expected that the Members will be required to contribute any additional capital to the Company other than those Capital Contributions set forth in Sections 2.2 and 2.3 hereof at the times set forth therein and at the Agreed Value. In the event, however, that either the Class A Member or the Class B Member (athe "Notifying Member"), in its reasonable business judgment, determines that additional capital is required by the Company, whether for capital expenditures, normal operating expenses, debt service or otherwise in connection with the Project, then the Notifying Member shall give ten (10) From time days written notice (the "Capital Notice") to timethe other Member (the "Notified Member") specifying in reasonable detail the amount and purpose of the additional required capital. If the Notified Member agrees within said ten (10) day period that the capital set forth in the Capital Notice is needed by the Company, such additional capital shall be obtained through bank financing or Additional Capital Contributions, as mutually determined by the Management CommitteeNotified Member and the Notifying Member.
2.5.2. If the Notified Member and the Notifying Member are unable to agree within said ten (10) day period as to whether additional funds are needed by the Company or are unable to agree as to whether such funds should be obtained through bank financing or Additional Capital Contributions, subject then the Notifying Member and the Notified Member each shall select a representative who together shall appoint one independent Person, unrelated to approval either Member or its Affiliates and who is experienced in the real estate development industry and has substantial expertise in the financial marketplace (the "Advisor"), to determine whether and when additional funds are needed and/or the manner in which such funds shall be obtained by a Supermajority in Interest of the Company; provided that, if the Advisor determines that such additional funds should be obtained from 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 then both 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 to the Company as provided in Section 2.5.3 hereof. The Members hereby agree that, in either case, the Advisor's determination shall be final and binding on the Members.
2.5.3. If additional funds are obtained from the Members through Additional Capital ContributionContributions, such contributions shall be made by the Members, in cash on the same terms and in the same amount, within ten (10) business days after receipt of (a) the Capital Notice (in the event that the Members agree to make Additional Capital Contributions pursuant to Section 2.5.1 hereof) or (b) written notice from the Advisor (in the event that the procedure under Section 2.5.2 hereof is utilized).
2.5.4. HoweverIf additional funds are obtained from the Members through Additional Capital Contributions and both Members make their Additional Capital Contribution hereunder, except as contemplated by an applicable Work Planthen, each Member shall be given entitled to the opportunity Preferred Return on Additional Capital with respect to make such additional its Additional Capital Contribution in proportion as of the Additional Capital Date.
2.5.5. If Additional Capital Contributions are required to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to be made by the Members under this Section 3.2(a)2.5 and a Member (the "Defaulting Member") fails to advance its pro rata share of such Additional Capital Contribution, then, any amounts advanced by the Company shall issue additional Units to each contributing other Member (the "Performing 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 treated as a loan by dividing the Performing Member to the Company, and the Performing Member shall have the right, but not the obligation, to make a loan to the Company in the amount of the Additional Capital Contribution due from the Defaulting Member. Any amounts advanced by the Performing Member under this Section 2.5.5, whether on its own behalf or on behalf of the Defaulting Member shall be treated as a loan (a "Capital Loan") notwithstanding that such funds may originally have been advanced by the Performing Member as an Additional Capital Contribution. All Capital Loans shall (i) the Company Valuation by (ii) the number be for a term 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member years, (each, ii) bear annual interest at a “Contributing Member”) in writing rate of the total amount of Noncontributing Member Capital Contributions not made thirteen percent (the “Additional Capital Shortfall”13%), (iii) be prepayable by the Company in whole or in part without penalty, and (iv) be repaid in full by the Company before any distributions may be made to any Member under Sections 10.1, 10.2 or 12.3 hereof. All payments received with respect to a Capital Loan shall specify a number of days within which each Contributing Member may make an additional Capital Contributionbe applied first against accrued and unpaid interest thereunder, which shall not be less than an amount bearing and then against the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleoutstanding principal balance thereof.
Appears in 1 contract
Additional Capital Contributions. (a) From If, at any time to timeafter the News Member has fully satisfied the News Funding Commitment, the Management Committee, subject to approval by a Supermajority in Interest CEO determines based on the then-current Annual Budget and Business Plan that the Company requires funds for the continued operation or growth of the MembersCompany, may determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable CEO shall cause the Company to conduct its business in accordance with request (a "Capital Call") that the Work PlanMembers contribute to the Company such amounts as the Company may direct on no less than five Business Days' prior notice to the Members. On making such a determinationThe notice (the "Additional Capital Notice") shall specify the amount of funds to be provided by each Member (each, the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before an "Additional Capital Contribution"), the date on which funds are to be provided (the "Contribution Date"), and the account of the Company to which such additional funds are to be transmitted. All Additional Capital Contributions to be made by the Members shall be in amounts that are neededin proportion to their respective Percentage Interests, determined, in each case, as of the date of the Capital Call. The notice Unless otherwise agreed by the Members, all Additional Capital Contributions shall set forth the amount of additional be in cash or immediately available funds. No 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 be paid 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 Members unless (i) the Company Valuation by need for additional capital is specifically provided for in the then currently approved Annual Budget or (ii) the number Members approve the payment of Units outstanding immediately prior to such additional Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted Contribution 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 4.4 hereof.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within Within five (5) days after said failurereceipt of an Additional Capital Notice, each Member shall notify the Company whether it intends to contribute its respective share of the Additional Capital Contribution referred to in the Additional Capital Notice. notify each If any Member (the "Defaulting Member") fails to contribute timely all or any portion of any Additional Capital Contribution that it is obligated to make pursuant to Section 3.3(a), the other Member (eachthe "Non-Defaulting Member") may, a “Contributing Member”at its option, at any time following the date of default, and prior to the date such default is cured, exercise on five (5) in writing days notice to the Defaulting Member any on of the total following remedies and the Defaulting Member shall not be permitted to vote with respect to the election of any of the following remedies by the Non-Defaulting Member:
(i) take such action, including court proceedings, as the Non-Defaulting Member may deem appropriate to obtain payment by the Defaulting Member of the Defaulting Member's Additional Capital Contribution that is in default, together with interest thereon from the date that the Additional Capital Contribution was due until the date that is it made, all at the cost and expense of the Defaulting Member; and
(ii) advance all or any portion of the Additional Capital Contribution required of the Defaulting Member as an Additional Contribution of the Non-Defaulting Member and cause the Percentage Interests to be recalculated in accordance with Section 3.4 of this Agreement;
(iii) make a payment to the Company in an amount equal to the Additional Capital Contribution that is in default with the effect that such payment shall constitute a loan (a "Default Loan") to the Defaulting Member by the Non-Defaulting Member, any such Default Loan to bear interest at the rate of 5% over the Prime Rate on the date nearest the date of the advance, which rate shall be adjusted annually based on changes to the Prime Rate on the anniversary of such Default Loan if such advance remains outstanding. For so long as any Default Loan remains unpaid, all distributions from the Company that otherwise would be made to the Defaulting Member (whether before or after the Dissolution of the Company) instead shall be paid to the Non-Defaulting Member until the Default Loan and all interest accrued thereon have been paid in full to the Non-Defaulting Member. Payments in respect of any Default Loan will be applied in the order that such Default Loan was made, and all payments will be applied first to accrued but unpaid interest and then to reduce the outstanding principal amount of Noncontributing Member Capital Contributions not made (such Default Loan. A Default Loan shall become automatically immediately due and payable by the “Additional Capital Shortfall”)Defaulting Member, and shall specify constitute a number general obligation of days within which each Contributing the Defaulting Member may upon the Dissolution of the Company or a Put of the News Member's Interest to Healtheon/WebMD. Any Default Loan shall be prepayable in whole or in part at any time without penalty.
(c) Except as set forth in this Section 3.3, no Member shall have any obligation to make an additional Additional Capital Contribution, which shall not be less than an amount bearing the same ratio Contributions to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCompany.
Appears in 1 contract
Additional Capital Contributions. In addition to the initial capital contributions specified in Section 3.1, the Parties agree to make additional capital contributions to the Joint Venture as follows:
(a) From time As and when expenses are incurred with respect to timethe Joint Venture Business, and neither the revenues from Joint Venture operations nor the initial capital contribution are sufficient to pay such expenses, the Management Committee“Manager” (as defined herein) may notify IWWI of such expenses, subject and IWWI will contribute the entire amount required to approval by a Supermajority in Interest cover such expenses. At the option of the MembersManager, a reasonable estimate may determine that Capital Contributions be made in addition advance of incurring expenses. IWWI shall remit to the Initial MembersManager the full amount of the expenses (or the estimated expenses) within ten (10) business days after receipt of such notice. The total of the $10,000.00 initial capital contributed by IWWI plus all other amounts contributed by IWWI pursuant hereto shall be deemed “Total Project Capital”. In the event that IWWI fails to pay such expenses within said ten (10) day period, then ▇▇▇▇ shall have all the following options:
(i) To advance the expenses of IWWI, which shall be considered a loan to IWWI due on demand and shall bear interest at the rate of ten percent (10%) per annum (or the highest rate allowable by law, if lower than ten percent (10%) per annum) until paid, and/or
(ii) To institute legal action against IWWI, in which event IWWI shall be responsible for all costs of said action, including the actual attorneys’ prior Capital Contributions are needed to enable fees incurred, and/or
(iii) To foreclose on the Company to conduct its business lien of IWWI in accordance with the Work Plan. On making such a determinationthen applicable provisions of Pennsylvania law, the Management Committee shall give written notice of such determination to all Members at least and/or
(iv) To invest, upon thirty (30) days before written notice, the date on which such additional Capital Contributions are needed. The notice shall set forth funds required, and increase its percentage of ownership in an amount relative to the increase in the amount of additional Capital Contribution neededcapital contributed, 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 and/or
(v) To dissolve 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 outstandingJoint Venture.
(b) If It is agreed that the revenues generated by the Joint Venture Business shall be used to pay expenses of the Joint Venture Business before the Manager calls upon IWWI for the payment of such expenses. Notwithstanding anything herein to the contrary, as long as IWWI is in default in the payment of expenses to the Joint Venture, any distributions of cash relating to its interest in the Joint Venture shall be withheld and offset against the amount in default or shall be applied to any loan made by ▇▇▇▇ pursuant to Section 3.2(a)(i) above.
(c) In the event that this Joint Venture is dissolved pursuant to Section 3.2(a), once distributions are made pursuant to Section 6.2 and Section 4.2, if IWWI has not received repayment of its Total Project Capital in full, it will retain a Member does not make an additional Capital Contribution with respect lien on the Banning 1 Lease, and will continue to receive 50% of the net profits generated from the lease until their contributions are returned in full.
(d) Each of the Parties shall be required to contribute to the Joint Venture its pro rata share of any capital necessary to reimburse any other Party for expenses which such Member has an option are reimbursable under Section 3.2(a) at the time specified 4.4, based on each Party’s interest in the notice (Joint Venture. Each Party has and is hereby granted a “Noncontributing Member”), lien on the Management Committee shall, within five (5) days after said failure. notify interest of each other Member (each, a “Contributing Member”) in writing of the total amount other Parties in the Joint Venture to secure the payment by each Party of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”)its proportionate share of such expenses. Notwithstanding such lien, and each Party shall specify a number be personally liable for its proportionate share of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleexpenses.
Appears in 1 contract
Sources: Joint Venture Agreement (Inform Worldwide Holdings Inc)
Additional Capital Contributions. (a) From time Except as set forth in Section 3.1 and for Capital Contributions from each Member in proportion to time, the Management Committee, subject to approval by a Supermajority such Member's then outstanding Percentage Interest in Interest respect of the MembersGeneral Partner's Percentage for equity issuances by Rodeo, 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 amountsL.P., 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 Planequity issuances approved pursuant to Section 7.9(b)(ii), 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 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.
(b) Subject to the approval of a Majority in Interest pursuant to Section 7.9, the Company may offer additional Membership Interests to any Person with the approval of the Board. Such approval of the Majority in Interest shall also include their approval of any related valuations of Gross Asset Value by the Board and, if such Majority in Interest approves such issuance without approving such valuation, Gross Asset Value shall be determined by a third Person familiar with the valuation of such transactions selected by the Majority in Interest not later than ten (10) days after their approval of such issuance or, if the Majority in Interest fails to so select a third Person, then such third Person will be selected in accordance with the rules and procedures of the American Arbitration Association in Houston, Texas. If a any additional Capital Contributions are made by Members but not in proportion to their respective Percentage Interests, the Percentage Interest of each Member does not make an shall be adjusted such that each Member's revised Percentage Interest determined immediately following each such additional Capital Contribution with respect shall be equal to a fraction (i) the numerator of which is the sum of (A) the positive Capital Account balance of the Member determined immediately preceding the date such Member has an option under Section 3.2(aadditional Capital Contribution is made (such Capital Account to be computed by adjusting the book value for Capital Account purposes of each Company asset to equal its Gross Asset Value as of such date, as provided in subparagraph (b) at of the time specified in the notice (a “Noncontributing Member”definition herein of "Gross Asset Value"), the Management Committee shall, within five EXECUTION COPY and (5B) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an such additional Capital Contribution, if any, made by such Member, and (ii) the denominator of which shall not be less than an amount bearing is the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all sum of the Contributing Members. If positive Capital Account balances immediately preceding the total amount of Additional date such additional Capital Shortfall Contribution is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make made plus additional Capital Contributions until of all Members on the Additional date of such additional Capital Shortfall is Contribution, including Capital Contributions of any new Members (in each case calculated as fully contributed as possibleprovided in (i) above). The names, addresses and Capital Contributions of the Members shall be reflected in the books and records of the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Plains Resources Inc)
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. However, except as contemplated by Additional Capital Contribution Notices will be sent to Eligible Members not less than ten (10) Business Days prior to the date on which an applicable Work Plan, each Member Additional Capital Contribution is due (the “Additional Capital Contribution Date”). All Additional Capital Contributions shall be given paid in United States dollars to the opportunity to make such additional Company in immediately available funds by no later than 3:00 p.m. (New York City time) on the Additional Capital Contribution in proportion to such Member’s Percentage InterestDate. Upon payment of an additional The Board may amend, delay or rescind 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 (i) the Company Valuation by (ii) the number of Units outstanding immediately Notice at any time prior to such additional the 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 Date.
(b) If a Member does not make an additional Each Additional Capital Contribution with respect Notice delivered to which an Eligible Member shall specify (i) the aggregate amount of Additional Capital Contributions subject to such Member has an option under Section 3.2(a) at Additional Capital Contribution Notice (the time specified in the notice (a “Noncontributing MemberAggregate Capital Contribution Amount”), the Management Committee shallAdditional Capital Contribution Date, within five 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 (5ii) days after said failure. notify each other 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 held by such Eligible Member to the aggregate number of Class A Units held by all Eligible Members) of the Aggregate Capital Contribution Amount, and the number of Class A Units to be issued to and purchased by such Eligible Member on the Additional Capital Contribution Date (calculated by dividing such Eligible Member’s Additional Capital Contribution by the Price Per Unit).
(c) If any Eligible Member (each, a “Non-Contributing Member”) in writing fails to contribute all or any portion of the total such Eligible Member’s Additional Capital Contribution (such amount of Noncontributing that is not so contributed by a Non-Contributing Member Capital Contributions not made (being the “Additional Capital ShortfallDelinquent Contribution”), then each Eligible Member that has contributed its full Additional Capital Contribution (for purposes of this Section 11.3(c), an “Other Member”) shall be entitled (but is not required) to contribute its pro rata portion of the Delinquent Contribution (based on the number of Class A Units 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 specify deliver a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio written notice to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until Company within ten (10) days after the Additional Capital Shortfall is as fully contributed as possible.Contribution Date to such effect. If any Other Member does not elect to contribute its entire pro rata share of the Delinquent Contribution by the expiration of 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 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 (iii) the Additional Capital Contribution to be paid by the Member to which the notice is addressed, which shall equal the product of why alternative financing, notably unsecured or secured debt financing, is not, in (x) the opinion aggregate Additional Capital Contributions times (y) such Member’s Percentage Interest as of the Management CommitteeCapital Call Notice Date. Notwithstanding anything herein to the contrary, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work Plan, no Member shall be required (A) subject to make an additional Capital Contribution. However, except as contemplated by an applicable Work Planclause (D) below, each Member shall be given have the opportunity right, but not the obligation, to make such additional an Additional Capital Contribution in proportion 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 Member’s Percentage Interest. Upon payment of an additional Additional Capital Contribution may be called solely from the Investor Member, (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 Section 5.1.2(b) at all times) for the period commencing on the Effective Date and ending on the one (1) year anniversary of the Effective Date and (D) in the case of any Additional Capital Contribution made in accordance with Section 11.5, no Capital Call Notice shall be required, such Additional Capital Contribution shall be made solely by the Investor Member and clause (A) of this Section 3.2(a) 5.1.2 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 apply.
(b) If a Member does not make an additional Capital Contribution with respect Without limiting any rights of the Manager pursuant to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”5.1.2(a), the Management Committee shallManager shall have the right, within five (5) days after said failure. notify each in its sole discretion and without the consent or approval of any other Member (eachMember, a “Contributing to cause the Company and/or any Subsidiary Company to borrow from time to time from the Investor Member”) in writing , any Affiliate of the total amount Investor Member or any third party, any amounts that would otherwise be covered by a Capital Call Notice pursuant to Section 5.1.2(a), in lieu of Noncontributing Member requesting an Additional Capital Contributions not made Contribution from the Members (each such borrowing shall be referred to as “Additional Company Debt Financing”). The economic and other terms of any such Additional Company Debt Financing shall be consistent with the then-current market for debt financing having the same purpose as the then-applicable proposed Additional Company Debt Financing, in each case, as reasonably determined by the Manager; provided that a third party finance broker reasonably selected by the Manager (the “Finance Broker”) has confirmed in writing (which may be in the form of an email) that such terms are “market” prior to the incurrence of such Additional Capital Shortfall”)Company Debt Financing. Notwithstanding the foregoing, (i) any Additional Company Debt Financing required for the 77 Greenwich Property shall be on the same general economic terms as the Investor Member Affiliate 77 Greenwich Mezz Loan and (ii) any Additional Company Debt Financing required in connection with the 237 11th Litigation shall specify a number have an all-in interest rate that does not exceed fifteen percent (15%) per annum for the first $1,000,000 of days within which 237 11th Financing costs incurred after the date hereof by the Company or the applicable Subsidiary Company. The Manager shall have the sole right, without the approval of any other Member, to cause the Company or the applicable Subsidiary Company to execute and deliver all of the documents evidencing, securing or otherwise memorializing any Additional Company Debt Financing, in each Contributing case, provided that such documents reflect the applicable terms provided herein and are otherwise on commercially reasonable third-party terms. For the avoidance of doubt, the TPH Member and its Affiliates may make an additional Capital Contribution, which provide introductions to potential sources of capital to the Manager and/or the Finance Broker (it being agreed that the Company shall not be less than an amount bearing obligated to enter into any transaction with any such potential sources of capital). Without limiting in any manner the same ratio Manager’s right to request Additional Capital Contributions pursuant to Section 5.1.2(a) or to cause the Company and/or any Subsidiary Company to enter into Additional Company Debt Financing pursuant to Section 5.1.2(b), the Manager agrees to take into consideration the amount of transfer taxes that may be payable by the Company and/or any Subsidiary Company as a result of the funding of any Additional Capital Shortfall as Contributions when determining whether to request that the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Members fund an Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContribution.
Appears in 1 contract
Sources: Stock Purchase Agreement (Trinity Place Holdings Inc.)
Additional Capital Contributions. (a) From time Upon a written capital call by the Sole Manager provided at least 30 days’ prior to timethe Capital Contribution being due, each Member shall make additional Capital Contributions (i) up to aggregate combined Capital Contributions after the Management CommitteeEffective Date of $60,000,000, if approved by a majority of the Board, (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.
(b) 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.
(c) Any additional Capital Contribution in proportion that a Member is required or elects to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant make shall be made 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) in immediately available funds on or before 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time date specified in the applicable notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which date shall not be less than an amount bearing the same ratio 30 days prior to the amount delivery of Additional Capital Shortfall as such notice).
(d) The provisions of this Section 3.2 shall not apply in the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all context of the Contributing Members. If sale of the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCompany or other comparable transaction.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Delta Petroleum Corp/Co)
Additional Capital Contributions. (a) From Additional Capital Contributions may be called for from the Members by the Manager from time to time, time as and to the Management Committee, subject extent capital is necessary to approval effect an investment. Except as otherwise agreed 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 be in an amount for each Member equal to the product of the amount of additional the ·aggregate Capital Contribution needed, the purpose called for which it is needed, the date multiplied 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 their respective Percentage Interest. Upon payment of an Such additional Capital Contribution pursuant Contributions shall be payable by the Members 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 upon the earlier of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) twenty (20) days after written request from the Company Valuation by Company, or (ii) the number of Units outstanding immediately prior to such additional date when the Capital Contribution. Immediately before issuing UnitsContribution is required, the Gross Asset Value of as set forth in a written request from 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.
(b) If a Member does (a "Defaulting Member") fails to make a Capital Contribution that is required as provided in Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the "Default Amount''), the other Member, provided that it has made the Capital Contribution required to be made by it, in addition to any other remedies it may have hereunder or at law, shall have one or more of the following remedies:
(1) to advance to the Company on behalf of, and as a loan to the Defaulting Member, an amount equal to the Default Amount to be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member (each such loan, a "Default Loan"). The Capital Account of the Defaulting Member shall be credited with the amount of such Default Amount attributable to a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the non-failing Member. Any Default Loan shall bear interest at the rate of twenty percent (20%) per annum, but in no event in excess of the highest rate permitted by applicable laws (the "Default Loan Rate"), and shall be payable by the Defaulting Member on demand from the non-failing Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall accrue and compound on a quarterly basis. A Default Loan shall be prepayable, in whole or in part, at any time or from time to time without penalty. Any such Default Loans shall be with full recourse to the Defaulting Member and shall be secured by the Defaulting Member's interest in the Company including, without limitation, such Defaulting Member's right to Distributions. In furtherance thereof, upon the making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-failing Member and agrees to promptly execute such documents and statements reasonably requested by the non-failing Member to further evidence and secure such security interest. Any advance by the non-failing Member on behalf of a Defaulting Member pursuant to this Section 5.2(b)(l ) shall be deemed to be a Capital Contribution made by the Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Member hereunder shall be applied first to payment of any interest due under any Default Loan and then to principal until all amounts due thereunder are paid in full. While any Default Loan is outstanding, the Company shall be obligated to pay directly to the non-failing Member, for application to and until all Default Loans have been paid in full, the amount of (x) any Distributions payable to the Defaulting Member, and (y) any proceeds of the sale of the Defaulting Member's Interest in the Company;
(2) subject to any applicable thin capitalization limitations on indebtedness of the Company, to treat its portion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. If each Member has loans outstanding to the Company under this provision, such loans shall be payable to each Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be treated as a Capital Contribution made by the Defaulting Member;
(3) to make an additional Capital Contribution with respect to which the Company equal to the Default Amount whereupon the Percentage Interests of the Members shall be recalculated to (i) increase the non-defaulting Member's Percentage Interest by the percentage ("Applicable Adjustment Percentage") determined by dividing one hundred fifty percent (150%) of the Default Amount by the sum of the Members' Total Investment (taking into account the actual amount of such Member has an option under Section 3.2(aadditional Capital Contribution) at and by increasing its Capital Account by one and one-half of the time specified amount of the Default Amount, and (ii) to reduce the Defaulting Member's Percentage Interest by the Applicable Adjustment Percentage and by decreasing its Capital Account by one-half of the amount of the Default Amount; or
(4) in lieu of the notice remedies set forth in subparagraphs (a “Noncontributing Member”1), the Management Committee shall, within five (52) days after said failure. notify each other Member or (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”3), and shall specify a number revoke its portion of days within which each Contributing Member may make an such additional Capital Contribution, which shall not be less than an amount bearing whereupon the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all portion of the Contributing Members. If Capital Contribution made by the total amount non-failing Member shall be returned within ten (10) days with interest computed at the Default Loan Rate by the Company.
(c) Notwithstanding the foregoing provisions of Additional Capital Shortfall is not so contributedthis Section 5.2, the Management Committee may use any reasonable method to provide Members the opportunity to make no additional Capital Contributions until shall be required from any Member if (i) the Additional Company or any other Person shall be in default (or with notice or the passage of time or both, would be in default) in any material respect under any loan, indenture, mortgage, lease, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company (or any of its Subsidiaries) or any of its properties or assets is or may be bound, (ii) any other Member, the Company or any of its Subsidiaries shall be insolvent or bankrupt or in the process of liquidation, termination or dissolution, (iii) any other Member, the Company or any of its Subsidiaries shall be subjected to any pending litigation (x) in which the amount in controversy exceeds $500,000, (y) which litigation is not being defended by an insurance company who would be responsible for the payment of any judgment in such litigation, and (z) which litigation if adversely determined could have a material adverse effect on such other Member and/or the Company or any of its Subsidiaries and/or could interfere with their ability to perform their obligations hereunder or under any Collateral Agreement, (iv) there has been a material adverse change in (including, but not limited to, the financial condition of) any other Member (and/or its Affiliates) which, in Member's reasonable judgment, prevents such other Member (and/or its Affiliates from performing, or substantially interferes with their ability to perform, their obligations hereunder or under any Collateral Agreement. If any of the foregoing events shall have occurred and any Member elects not to make a Capital Shortfall is as fully contributed as possibleContribution on account thereof, then any other Member which has made its pro rata share of such Capital Contribution shall be entitled to a return of such Capital Contribution from the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Additional Capital Contributions. (a) From If, at any time or from time to time, the Management CommitteeBoard determines, subject to approval by a Supermajority in Interest good faith, that the Company requires additional amounts of cash for the conduct of the MembersCompany’s business or operations or the satisfaction of Company obligations, may determine or if the Dealer of Record notifies the Board that the Company needs additional capital to satisfy the Net Working Capital Requirements (“Net Working Capital Shortfall”), then the Board may, and in the case of a Net Working Capital Shortfall will, secure additional debt and/or other alternative funding sources or shall call upon the Members to make additional Capital Contributions in addition of cash (a “Capital Call”) to the Initial Members’ prior fund such Net Working Capital Contributions are needed Shortfall or other Company business, operations or obligations by delivering to enable the Company to conduct its business each Member a written notice (a “Capital Shortfall Notice”). Each Member shall make a pro-rata additional Capital Contribution in accordance with that Member’s Percentage Interest according to the Work Plan. On making such a determinationCapital Shortfall Notice; provided, however, that 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 failure to make an additional Capital Contribution. However, except as contemplated Contribution shall not constitute a breach 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, but rather shall result in the consequences provided for in sub-part (b) below. Upon payment Notwithstanding anything to the contrary, in the event of an additional a Net Working Capital Contribution pursuant to this Section 3.2(a)Shortfall, the Company shall issue not (and shall not permit any Subsidiary to) incur any additional Units debt if and to each contributing Member, with each new Unit being issued for its fair market value. The fair market value of an the extent such additional Unit issued pursuant to this Section 3.2(a) shall be determined debt is prohibited by dividing (i) the Manufacturer or will cause the Company Valuation by (ii) or an applicable Subsidiary to violate the number of Units outstanding immediately prior to such additional Capital ContributionManufacturer Rules. Immediately before issuing UnitsAAG HOLDING CO1, 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.LLC Limited Liability Company Operating Agreement
(b) If a Member does not fails to make an additional Capital Contribution with respect to which such Member has an option required under Section 3.2(a) at a Capital Shortfall Notice, any or all of the time specified in the notice (a “Noncontributing Member”), the Management Committee shallremaining Members may, within five (5) days Business Days after said failure. notify each other Member (each, a “Contributing Member”) in writing expiration of the total time period for making such contribution, elect to lend to such Member the amount of Noncontributing such required capital, pro rata based on the Percentage Interests of the remaining Members who so elect. In such event, the Percentage Interests of the Members shall remain unchanged, but the loan shall be evidenced by a promissory note (at the floating prime rate as determined from time to time by the Company’s then principal bank) and shall be secured by the borrowing Member’s rights to distribution hereunder, and the Members are authorized to apply any and all distributions to a Member who has borrowed funds from another Member pursuant to this Section to the repayment of such loan. The proceeds of such a loan shall be paid to the Company as an additional Capital Contributions Contribution for the borrowing Member. To the extent that none of the remaining Members desire to lend such funds or if such Member gives notice within said five (5) Business Day period to the remaining Members that such Member does not made desire to borrow funds from the remaining Members (or otherwise refuses to execute the “Additional Capital Shortfall”referenced promissory note), and all but not less than all of the remaining Members may elect by written notice to all Members within five (5) Business Days after the loan election to contribute the balance of such required capital in proportions agreed to by the remaining Members or, in the event that such remaining Members fail to so agree, in proportion to their Percentage Interests. In such event, the Percentage Interests of the Members shall specify be adjusted to take into consideration the additional capital contribution or portion thereof made. In the event that the remaining Members fail to elect to make the loan to or contribute capital for a number of days within which each Contributing Member may who fails to make an additional Capital Contribution, which the Percentage Interests of the Members shall not be less than an amount bearing adjusted to take into consideration the same ratio additional Capital Contributions made pursuant to this Section 5.5. If, as a result of any adjustment to the amount Percentage Interests of Additional Capital Shortfall as the Contributing Members under this subsection, (i) the LMP Member’s Percentage Interest bears is reduced to an amount less than 50%, the combined LMP Member for so long as the LMP Member’s Percentage Interests of all Interest is less than 50% shall be permitted to appoint only one (1) Manager pursuant to Section 8.3(a)(i) and (ii) the AAG Member’s Percentage Interest is increased to an amount equal to or more than 50%, the AAG Member for so long as the AAG Member’s Percentage Interest is greater than 50% shall be permitted to appoint two (2) Managers pursuant to Section 8.3(a)(ii); provided during any period in which both the LMP Member and the AAG Member have a Percentage Interest equal to 50%, each of the Contributing Members. If LMP Member and the total amount AAG Member shall be entitled to appoint two (2) Managers pursuant to Section 8.3(a)(i) or 8.3(a)(ii), as applicable.
(c) Each of Additional Capital Shortfall is not so contributedthe Company and each Member acknowledges and agrees that, as of the Management Committee may use Effective Date, no Member has made any reasonable method representation, commitment or agreement to provide Members or assist the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCompany in obtaining any financing, investment or other assistance.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (LMP Automotive Holdings, Inc.)
Additional Capital Contributions. (a) From time to timeIn the event that the Company has additional funding needs other than those addressed by the Subscription Agreement, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Board may determine to request that Capital Contributions in addition the Shareholders make additional capital contributions to the Initial Members’ prior Company (each, an “Additional Capital Contributions are needed to enable Contribution”) and authorize the Company to conduct its business issuance of New Shares in connection therewith (“ACC Shares”) in accordance with the Work Planprocedures set forth in this Section 4.2. On making such a determinationFor the avoidance of doubt, the Management Committee neither Shareholder shall give written notice of such determination have any obligation to all Members at least thirty (30) days before the date on which such additional make Additional Capital Contributions are needed. The notice shall set forth 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 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 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 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 outstanding4.2.
(b) If the Board determines to request that the Shareholders make Additional Capital Contributions to the Company, the Company shall issue a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice written request (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing MemberCapital Call”) in writing to each of the total amount Shareholders for the making of Noncontributing Member Capital Contributions not made (the “such Additional Capital Shortfall”), and Contributions. The Capital Call shall specify a number of days within which each Contributing Member may make an additional Capital Contribution(i) the book value per Share, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If (ii) the total amount of Additional Capital Shortfall is not so contributedContributions requested from all Shareholders, (iii) the Management Committee may use any reasonable method total number of ACC Shares proposed to provide Members be issued to the opportunity to make additional Capital Contributions until Shareholders in connection therewith (which number shall be based on the book value per Share), (iv) the amount of the Additional Capital Shortfall Contribution requested from each Shareholder (with respect to each Shareholder, its “Proportionate Contribution Entitlement”), (v) the number of ACC Shares proposed to be issued to each Shareholder in connection therewith and (vi) whether the purpose of such Capital Call is to fund Necessary Expenses required by the Company during the Contribution Option Period and which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources, together with a brief description of any such Necessary Expenses and the other sources of funding considered but which were unavailable.
(c) The total amount of Additional Capital Contributions requested pursuant to a Capital Call and each Shareholder’s Proportionate Contribution Entitlement shall be calculated so as fully contributed to ensure that, if each Shareholder made an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement, the ACC Shares issued would not result in any change to either Shareholder’s Pro Rata Percentage. Each Shareholder acknowledges that by declining to make an Additional Capital Contribution pursuant to a Capital Call in the full amount of such Shareholder’s Proportionate Contribution Entitlement, its Pro Rata Percentage may be diluted in accordance with the terms of this Section 4.2, unless otherwise agreed by the Parties.
(d) Within forty-five (45) days following receipt of a Capital Call (the “Contribution Option Period”), each Shareholder shall send a written notice to the Company either (i) declining to make an Additional Capital Contribution pursuant to the Capital Call or (ii) agreeing to make part or all of the Shareholder’s Proportionate Contribution Entitlement and stating what portion of the Shareholder’s Proportionate Contribution Entitlement it shall make. Any Shareholder that does not send a notice within the Contribution Option Period shall be deemed to have declined to make any Additional Capital Contribution pursuant to the Capital Call.
(e) Within five (5) Business Days following the expiration of the Contribution Option Period, the Company shall give written notice (a “Contribution Notice”) to each Shareholder specifying the amount of each Shareholder’s Proportionate Contribution 28
(f) Within ten (10) Business Days following receipt of a Contribution Notice showing a Residual Contribution Amount (the “Residual Exercise Period”), any Contributing Shareholder shall send a written notice to the Company either (i) declining to increase the amount of its Additional Capital Contribution to include any portion of the Residual Contribution Amount or (ii) exercising its right to increase its Additional Capital Contribution and stating the portion of the Residual Contribution Amount by which it desires to increase its Additional Capital Contribution. If such Shareholder does not send a notice within the Residual Exercise Period, it shall be deemed to have waived its right to increase the amount of its Additional Capital Contribution pursuant to Section 4.2(e).
(g) At the expiration of the Contribution Option Period or the Residual Exercise Period, as possibleapplicable, any Shareholder electing to make an Additional Capital Contribution pursuant to Section 4.2(d) and Section 4.2(f) (an “Electing Shareholder”) may make such Additional Capital Contribution and the Company may issue ACC Shares in connection therewith without any further obligation to any other Shareholder. Any Electing Shareholder shall make such Additional Capital Contribution within ten (10) Business Days following its receipt of a Contribution Notice or within ten (10) Business Days following the receipt of any and all required regulatory approvals, whichever is later (such date, the “ACC Deadline”), and the Company shall issue ACC Shares in connection therewith as promptly as practicable thereafter. In addition, the Company and any Electing Shareholder shall take all such other actions as may be reasonably necessary to complete such Additional Capital Contribution, including entering into such additional agreements as may be necessary or appropriate.
(h) With respect to any Capital Call to fund Necessary Expenses required by the Company during the Contribution Option Period and for which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources, any Shareholder may elect to contribute part or all of its and any other Shareholder’s Proportionate Contribution Entitlement of the Additional Capital Contributions in respect of the related request therefor (collectively, the “Emergency Advance”) and such Emergency Advance will be treated as a loan from such Shareholder to the Company, provided that a Shareholder must notify the other Shareholders in writing of the amount of such Emergency Advance at least five (5) Business Days prior to the contribution thereof (the “Emergency Advance Notice”). If a Shareholder has elected to contribute all or part of its or another Shareholder’s Proportionate Contribution Entitlement pursuant to this Section 4.2(h), upon contribution of the Proportionate Contribution Amounts by each Shareholder as an Additional Capital Contribution, the Company shall pay directly to the Shareholder making the Emergency Advance an amount equal to the Emergency Advance made by such Shareholder plus an additional amount of interest thereon 29
Appears in 1 contract
Sources: Shareholder Agreement
Additional Capital Contributions. (a) From No Member is hereby required to contribute additional capital to the Company. Notwithstanding the immediately foregoing sentence, if the Board reasonably determines that the Company requires funds to pay for expenses and working capital necessary to fund Events and the other aspects of the Business, then SFX-IDT N.A. Holding shall make an SFX Capital Contribution to the Company in respect of the Units then held by SFX-IDT N.A. Holding in an amount and at such time as the Board reasonably determines; except that SFX-IDT N.A. Holding is not required to timemake any SFX Capital Contribution to the extent that doing so would constitute a default or an event of default under, or would otherwise violate the terms of, any of the Barclays Credit Documents; provided, that SFX and SFX-IDT N.A. Holding shall use commercially reasonable efforts not to enter into any contracts or agreements so restricting any SFX Capital Contribution.
(b) Subject to the Approval of the Board and any other approval requirement set forth herein or under applicable Law (and only after obtaining the Approval of the Board and any such other approval requirement), the Management Committee, subject Company is permitted to approval by a Supermajority admit additional Members and to issue (in Interest of the Members, may determine that exchange for additional Capital Contributions in addition to or otherwise), on such terms as are Approved by the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business Board, additional Units. If such issuance was effected in accordance with the Work Plan. On making terms hereof and the Person to which such Units were issued signs a determinationJoinder Agreement, then the Person to which such Units were issued will thereby be deemed admitted as a Member with respect to such Units, the Management Committee shall give written notice of such determination Member Schedule will thereby be deemed amended to all Members at least thirty (30) days before reflect the date on which such additional Capital Contributions are needed. The notice shall set forth the amount of additional Capital Contribution neededname of, the purpose for which it is needed, the date by which the Members may contribute such additional amountsaddress of, 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 held by such Member, and any Officer will thereby be permitted to insert a copy of the Member Schedule that reflects such additional amendments.
(c) All Capital Contribution. Immediately before issuing UnitsContributions made to the Company are to be credited to the Capital Account of such Person as and when such Capital Contribution is made, as reflected in the Gross Asset Value records of the Company’s assets . As a result of such Capital Contributions and the admission of each Person as a Member, the Board will be adjusted have the right, but not the obligation, to adjust the respective Capital Accounts of the Members in a manner provided under accordance with 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 reRegulations Section 1.704-compute the Percentage Interests 1(b)(2)(iv)(f).
(d) None 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.
(b) If a Member does not make an additional Capital Contribution have any pre-emptive rights with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing any issuances of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleUnits.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (SFX Entertainment, INC)
Additional Capital Contributions. (a) From time Except as set forth in this Section 4.2, as determined by the Executive Committee (after using commercially reasonable efforts to timeobtain third-party loans) or as set forth in any “make-well,” completion guaranty or similar obligation to which Holding becomes subject pursuant to the terms of the Construction Financing, Expansion Financing or Permanent Financing, Holding shall not be required to make any Capital Contribution. Any additional Capital Contributions pursuant to this Section 4.2 shall be made by Holding as of the date that such Capital Contribution is required to be made pursuant to the terms of this Agreement, in such form and amount as may be determined by the Executive Committee. In connection with any such additional Capital Contribution, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Company may determine that revalue Holding’s Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business Account in accordance with Section 1.704-1(b)(2)(iv)(f) of the Work PlanRegulations. On making Except as expressly provided in this Agreement, Holding shall not be entitled to withdraw as a Member or to demand or receive a return of its Capital Contribution. No obligation of Holding to make any Capital Contribution hereunder may be enforced by a creditor of the Company unless Holding expressly consents to such a determination, enforcement or to the Management Committee shall give written notice assignment of such determination obligation to all Members at least such creditor.
(b) Holding shall make such additional Capital Contributions to the Company as are required to be made pursuant to the terms of this Agreement upon thirty (30) days before days’ prior written notice from the Executive Committee specifying (i) the amount and intended use of such Capital Contribution and (ii) the date on which such Capital Contribution is to be made. The EC Members agree to use their best efforts to agree, within nine (9) months of the Effective Date, on the amounts of Holding’s additional Capital Contributions Contribution obligations for the construction of the Project, based on the preliminary construction budget, and, subject to reaching such agreement, Holding acknowledges and agrees that, until the Construction Financing closes, it will make additional Capital Contributions, loans or advances, or any combination thereof, to fund construction of the Project in excess of its initial Capital Contribution. Loans, advances and capital contributions in excess of Holding’s initial Capital Contribution are needed. The collectively referred to herein as the “Excess Construction Contributions.” In the event the Company obtains Construction Financing and such Construction Financing permits the Company to distribute money from the proceeds of such Construction Financing to Holding, then, notwithstanding anything in this Agreement to the contrary (but subject to the terms of the Holding Operating Agreement)), the Executive Committee will cause the Company, to the maximum extent permitted by the Construction Financing (consistent with prudent business judgment and reasonable reserves), to distribute to Holding (either as a return of capital contributions or repayment of loans or advances, as the case may be) amounts of Distributable Cash equal to the aggregate amount of Excess Construction Contributions.
(c) If any EC Member determines that reasonable financing is unavailable to meet the requirements of the current approved Annual Plan and Operating Budget, then the Executive Committee, upon thirty (30) days’ prior written notice shall set forth specifying the amount of additional such Capital Contribution needed, the purpose for which it is needed, and the date by on 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 is to such Member’s Percentage Interest. Upon payment of be made, may demand an additional Capital Contribution from Holding to fund such current requirements, which shall be made by Holding as of the date that such Capital Contribution is required to be made pursuant to the terms of this Agreement; provided, however, the aggregate amount of such additional Capital Contributions pursuant to this Section 3.2(a)4.2(c) shall not exceed $20,000,000, in the aggregate, over the term of this Agreement.
(d) If the revenues of the Project are insufficient to fund the Reserve Fund during any Fiscal Month, then any EC Member, upon thirty (30) days’ prior written notice specifying the amount of such Capital Contribution and the date on which such Capital Contribution is to be made, may demand an additional Capital Contribution from Holding to fund such Reserve Fund shortfall, which shall be made by Holding as of the date that such Capital Contribution is required to be made pursuant to the terms of this Agreement; provided, however, the aggregate amount of such additional Capital Contributions pursuant to this Section 4.2(d) shall not exceed in any Fiscal Year the difference between three percent (3%) of Gross Revenues for such Fiscal Year (or partial Fiscal Year to date) less the Reserve Fund previously funded in such Fiscal Year. Within one hundred twenty (120) days after the end of the applicable Fiscal Year, if any additional Capital Contributions were made pursuant to this Section 4.2(d) in such Fiscal Year, the Company shall issue distribute to Holding the positive amount, if any, equal to the difference between (x) the sum of (I) the amounts reserved from revenues by the Company for the Reserve Fund plus (II) all additional Units Capital Contributions made pursuant to each contributing Memberthis Section 4.2(d) in such Fiscal Year, less (y) an amount equal to three percent (3%) of Gross Revenues for such Fiscal Year.
(e) The Company acknowledges and understands that it is Holding’s intent to fund all additional Capital Contributions to the Company, if any, solely with each new Unit and from GC/Holding Capital Contributions and Station/Holding Capital Contributions to Holding and that, if GC or Station fails to fund its GC/Holding Capital Contributions or Station/Holding Capital Contributions, Holding may not have sufficient funds from other sources to fund its Additional Capital Contributions.
(f) Holding acknowledges that it, Parent, Station, GC and/or Affiliates of GC (“GC Affiliates”) may execute “make-well” agreements, completion guaranties, pledge agreements, indemnity agreements, or similar surety or guaranty documents in connection with the Construction Financing, any Expansion Financing, and/or the Permanent Financing (individually a “Pledge/Guaranty Document” and collectively the “Pledge/Guaranty Documents”; GC and GC Affiliates collectively hereinafter may be referred to as the “GC Pledgors;” and Station and Parent together hereinafter may be referred to as the “Station Pledgors”). In the event that (i) Holding is required to make a payment to the lender(s) with respect to an applicable Pledge/Guaranty Document, (ii) any collateral of Holding is pledged thereunder is foreclosed or transferred in lieu of foreclosure or (iii) any dividends or distributions with respect to any pledged collateral of Holding is used to make a payment to the lender(s) on behalf of the Company, the Station Pledgors or the GC Pledgors with respect to any Pledge/Guaranty Document, then the amount credited against (or used to reduce) amounts owed by the Company, Holding, the Station Pledgors or the GC Affiliates under the Construction Loan Documents, Expansion Project Loan Documents, Permanent Loan Documents or the Pledge/Guaranty Documents as a result of the foreclosure or transfer of the collateral shall be deemed an additional Capital Contribution by Holding to the Company for purposes of this Agreement. In the event that (i) any GC Pledgor is required to make a payment to the lender(s) with respect to an applicable Pledge/Guaranty Document, (ii) any collateral of a GC Pledgor pledged thereunder is foreclosed or transferred in lieu of foreclosure or (iii) any dividends or distributions with respect to any pledged collateral of any GC Pledgor is used to make a payment to the lender(s) on behalf of the Company, Holding, the Station Pledgors or the GC Pledgors with respect to any Pledge/Guaranty Document, then the amount credited against (or used to reduce) amounts owed by the Company, Holding, the Station Pledgors or the GC Pledgors under the Construction Loan Documents, Expansion Project Loan Documents, Permanent Loan Documents or the Pledge/Guaranty Documents as a result of the foreclosure or transfer of the collateral shall be deemed an additional Capital Contribution by GC to Holding and then by Holding to the Company for purposes of this Agreement. In the event that (i) any Station Pledgor is required to make a payment to the lender(s) with respect to an applicable Pledge/Guarantee Document, (ii) any collateral of a Station Pledgor pledged thereunder is foreclosed or transferred in lieu of foreclosure or (iii) any dividends or distributions with respect to any pledged collateral of a Station Pledgor is used to make a payment to the lender(s) on behalf of the Company, Holding, a Station Pledgor or a GC Pledgor with respect to any Pledge/Guaranty Document, then the amount credited against (or used to reduce) amounts owed by the Company, Holding, the Station Pledgors or the GC Pledgors under the Construction Loan Documents, Expansion Project Loan Documents, Permanent Loan Documents or the Pledge/Guaranty Documents as a result of the foreclosure or transfer of the collateral shall be deemed an additional Capital Contribution by Station to Holding and then by Holding to the Company for purposes of this Agreement.
(g) Holding acknowledges that it, the Company, the Station Pledgors or the GC Pledgors may, under the Construction Financing, Expansion Financing or Permanent Financing, have the right to pledge additional collateral (including cash) to cure the default (a “Curable Default”) of one (1) of the Company, Holding, the Station Pledgors or the GC Pledgors under other loan documents or by reason of Bankruptcy or a similar event (a “Cure Pledge”). In the event that a Curable Default by the Company, Holding, the Station Pledgors or the GC Pledgors occurs, then Station and Parent in the case of a Curable Default by a Station Pledgor, and GC and the GC Affiliates in the case of a Curable Default by a GC Pledgor, shall have ten (10) days from such Curable Default to make the Cure Pledge. If they fail to do so, then the GC Pledgors in the case of the failure by a Station Pledgor, and the Station Pledgors in the case of the failure by a GC Pledgor, may make the Cure Pledge (the party failing to cure being issued for its fair market valuethe “Cross-Default Party,” the party making such pledge being the “Curing Party,” and the collateral pledged being the “Cure Collateral”). The Cross-Default Party shall indemnify and hold harmless the other parties from the cost of curing the Curable Default, such as reasonable attorneys’ fees, escrow costs, and filing fees, but expressly excluding the opportunity cost of such cure (e.g., the lost opportunity for other uses of the Cure Collateral), but expressly including the fair market value of the Cure Collateral valued as of the date of the pledge if the same is foreclosed or conveyed in lieu of foreclosure (the “Collateral’s Fair Market Value”). If the Cure Collateral is foreclosed or otherwise conveyed in lieu of foreclosure, the party who pledged the Cure Collateral (or on whose behalf the Cure Collateral was pledged) may elect to treat the Collateral’s Fair Market Value as a Default Amount (as defined in the Holding Operating Agreement) or Default Loan (as defined in the Holding Operating Agreement). In the event that a Curing Party makes a Cure Pledge, then the Cross-Default Party shall, for so long as such Cure Pledge is outstanding, on each annual anniversary date of such pledge, pay to the other Curing Party an additional Unit issued pursuant amount equal to this Section 3.2(a) shall be determined by dividing the lesser of (i) ten percent (10%) of the Company Valuation by Collateral’s Fair Market Value, or (ii) the number maximum permitted by law (the “Cure Cost of Units outstanding immediately prior to Capital”); such additional payment shall be prorated for any partial year that the Cure Pledge is outstanding. In the event the Cure Cost of Capital Contribution. Immediately before issuing Unitsis not paid when due, it shall, at the Gross Asset Value election of the Company’s assets will be adjusted in non-defaulting party, constitute either a manner provided Default Amount or Default Loan 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 Agreement.
(bh) If In the event of the expulsion of Station as a Member does not make an additional Capital Contribution with respect to which such Member has an option member of Holding, or a dilution of Station under Section 3.2(a4.2(f) at of the time specified in the Holding Operating Agreement, Station may give written notice (a “Noncontributing Member”)to GC that it desires to resign as Manager; provided, the Management Committee however, Station shall, within five if requested by GC, be obligated to serve as the Manager for a period of up to thirty six (536) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made months (the “Additional Capital ShortfallTransition Period”)) after the expulsion or Dilution Date, during which time Station shall continue to perform its obligations hereunder and continue to receive compensation and expense reimbursement pursuant to Section 3.5, and shall specify will cooperate with GC in its efforts to engage a number successor Manager of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio Project. Notwithstanding the foregoing to the amount of Additional Capital Shortfall contrary, Station may not resign as the Contributing MemberManager without GC’s Percentage Interest bears to the combined Percentage Interests of all prior written consent (which may be given or withheld in GC’s sole discretion) if such resignation would cause a termination of the Contributing Members. If commitment for or an acceleration of the total amount of Additional Capital Shortfall is not so contributedConstruction Financing, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleExpansion Financing or Permanent Financing.
Appears in 1 contract
Additional Capital Contributions. (a) From time to timeExcept as otherwise may be expressly provided herein, 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 Members 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 capital contributions. The Manager shall have the discretion to request, in writing, additional Capital Contribution. However, except as contemplated by an applicable Work Plan, Contributions from each Member shall be given the opportunity to make such additional Capital Contribution in proportion to such Member’s their Membership Percentage Interest(“Capital Call”) in the event that the Company has insufficient funds to operate the Business of the Company or to make required payments on any debt of the Company; provided, however, the timing and amount of a Capital Call must be reasonable. Upon payment S ection 8.4 Failure to Pay Capital. Should any Member fail to pay the amount of an additional any Capital Contribution Call requested by Manager pursuant to this Section 3.2(a), Article 8 (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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Defaulting Member”), any other Member may, at his, her or its election, make the Management Committee shallrequired payment on behalf of the Defaulting Member; provided however, within 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 after said to cure its failure to pay by making payment of the required Capital Call, plus interest on such amount from the date it was due until the date paid, at the Applicable Rate, in 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 failure, which has been cured. notify each other Any Member which makes a payment to the Company on behalf of a Defaulting Member pursuant to this Section 8.4 (each, a “Contributing Member”) in writing shall treat the payment as an additional capital contribution to the capital of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as 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 formula set forth below. If more than one Member elects to be a Contributing Member, then all contributing Members shall contribute on a pro rata basis determined by the ratio of the respective Membership Interest bears to the combined Percentage Interests of all of the Contributing Members. If The respective Ownership Percentage of each Contributing Member and the Defaulting Member shall be adjusted and recalculated in accordance with the following formula: [(Membership Percentage of Contributing Member multiplied by total amount invested Capital of Company) plus (Amount of Additional Capital Shortfall is not so contributed, Contributed by Contributing Member on behalf of himself/herself/itself and the Management Committee may use any reasonable method to provide Members Defaulting Member)] divided by [(Total invested Capital of the opportunity to make additional Company) plus (total Additional Capital Contributions until contributed to the Company pursuant to Section 8.3)] D efaulting Member: [(Membership Percentage of Defaulting Member multiplied by total invested Capital of the Company)] divided by [(Total invested Capital of the Company) plus total Additional Capital Shortfall is as fully Contributions contributed as possible.to the Company pursuant to Section 8.3)]
Appears in 1 contract
Sources: Operating Agreement
Additional Capital Contributions. (a) From time to time, When the Management Committee, subject to approval Operating Member determines in its good faith business judgment that capital is needed 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 pay for (i) costs provided in accordance with the Work Plan. On making such a determinationProject Budget for which Capital Contributions have not been previously made by the Members and that are not being paid for out of Company Financing or (ii) costs of development or construction of the Project in excess of the Project Budget, which costs have been approved by Member Consent (and for which each of CNL and MCR has approved an increase in the CNL Maximum Initial Capital and the MCR Maximum Initial Capital, respectively, as provided in Section 4.1) (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 shall constitute an “Additional Initial 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 Funding Notice” pursuant to this Section 3.2(a4.5(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 All amounts funded by MCR pursuant to this Section 3.2(a4.5(a) shall be determined constitute a portion of MCR’s Initial Capital. All amounts funded by dividing CNL pursuant to this Section 4.5(a) shall constitute a portion of CNL’s Initial Capital. Within ten (i10) Business Days following the Company Valuation by date of delivery of an Additional Initial Capital Funding Notice (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Unitsin each case, the Gross Asset Value of “Additional Initial Capital Request Date”), CNL and MCR shall contribute to the Company’s assets will be adjusted , in a manner provided under proportion to their Percentage Interests, as Additional Initial Capital, the definition amount so required, up to the CNL Maximum Initial Capital, in the case of Gross Asset Value in Appendix 1 attached heretoCNL, and Capital Accounts will reflect such new Gross Asset Valueup to the MCR Maximum Initial Capital, in the case of MCR. 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.
(b) If a Member does not make an additional fails to fund any of its Additional Initial Capital Contribution with respect to which such Member has an option under when and as required by this Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”4.5(a), the Management Committee shall, within five (5) days after said failure. notify each other Non-Failing Member (each, shall have an option to purchase the Failing Member’s Entire Interest for a “Contributing purchase price equal to the Failing Member”) in writing ’s Unreturned Initial Capital and the outstanding principal balance of any Member Loans and Failing Member Loans made by the total amount of Noncontributing Failing Member Capital Contributions by providing the Failing Member not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio ten (10) days’ prior, written notice of intent to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Membersexercise such option. If the total amount Failing Member fails to cure such failure prior to the expiration of Additional Capital Shortfall is not so contributedsuch ten (10)-day notice period, and the Non-Failing Member exercises such option, the Management Committee may use Failing Member will cease to have any reasonable method interest in the Company or the Project, its Membership Interest in the Company thereafter representing only the right to provide Members receive the opportunity purchase price due it, and the Failing Member shall deliver its Entire Interest to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleNon-Failing Member within ten (10) days against payment by the Non-Failing Member of the purchase price for the Failing Member’s Entire Interest.
Appears in 1 contract
Sources: Limited Liability Company Agreement (CNL Growth Properties, Inc.)
Additional Capital Contributions. (a) From time to time, the Management CommitteeBoard will consider and discuss whether the Company is in need of additional cash funds beyond those funds made available through the AKS Phase I Balance and the Phase II Portion Capital Contributions. If the Board determines that the Company has such need, subject to approval by a Supermajority in Interest the Board shall consider and discuss the amounts of the Membersneeded additional funds and the most appropriate funding of those needed amounts (e.g., may determine whether such amounts should be obtained through borrowings, additional cash contributions from the Members or through other means). If, following such consultations, the Board determines that Capital Contributions in beyond those contemplated by Article 2 (“Additional Capital Contributions”) are necessary for the Company to pay its capital and operating expenses as they will become due and payable, then the Board may make one (1) or more calls for Additional Capital Contributions from the Members. Calls for Additional Capital Contributions made by the Board pursuant to this Section 3.1(a) shall be made by written notice delivered to the Members and will be due and owing sixty (60) days after the date of such call.
(b) In addition to the Initial Members’ foregoing, at any time following the satisfaction of the Phase II Conditions and prior Capital Contributions are needed to enable the Phase II Abandonment Date, in the event either Member determines that the Company is in need of additional cash funds in order for the Company to conduct its business complete Phase II, such Member may request a meeting of the Board to discuss such funding needs. The Board shall consider in accordance with good faith such needs and shall determine the Work Plan. On making such a determinationmost beneficial method for meeting the funding needs, which may include securing loans from third party financing sources, securing loans from Members, or calling for Additional Capital Contributions pursuant to Section 3.1(c).
(c) If within ninety (90) days of the date of any meeting of the Board held pursuant to Section 3.1(b), the Management Committee Company has not obtained all of the additional funding and either Member reasonably determines that any material aspect of Phase II is being altered or delayed in any material manner as a result of insufficient cash resources, then such Member (the “Calling Member”) may seek additional financing sources for the Company pursuant to Section 3.1(d).
(d) The Calling Member may seek the additional funds from the following sources, provided it shall give seek such funds solely in the following order:
(i) The Board or the Calling Member shall first make a call for an Additional Capital Contribution from the Members up to the amount of funds equal to 1.996 times the amount of funds in the Magnetation Capital Reserve Account, until such funds are exhausted, and pursuant to such call, Magnetation and AKS shall make Additional Capital Contributions as described in Sections 3.1(g)(1) and (2);
(ii) If the funds provided pursuant to clause (i) above are not sufficient, then the Board or the Calling Member on behalf of the Company shall seek a loan from a third party financing source or sources on commercially reasonable terms;
(iii) If the funds provided pursuant to clause (i) and, if available, clause (ii) above are not sufficient, then the Board or the Calling Member on behalf of the Company shall seek a loan from a Member or Members on commercially reasonable terms, which either Member is entitled to decline in its sole discretion; and
(iv) If the funds provided pursuant to clause (i), and, if available, clauses (ii) and (iii) above are not sufficient, then the Board or the Calling Member may make one (1) or more calls for Additional Capital Contributions in excess of the amount set forth in clause (i) above from the Members by written notice of such determination to all Members the Members; provided, however, that AKS shall not be entitled to call for Additional Capital Contributions pursuant to this Section 3.1(d)(iv) unless AKS has provided a loan to the Company pursuant to Section 3.1(d)(iii) in at least the original principal amount of $25 million.
(e) Any Additional Capital Contributions pursuant to Section 3.1(d)(i) or 3.1(d)(iv) will be due and owing thirty (30) days before after the date on which of such additional call. The other provisions of this Section 3.1 shall apply to any calls for Additional Capital Contributions are needed. The notice shall set forth made by a Calling Member pursuant to such sections to the amount same extent as calls for Additional Capital Contributions made by the Board pursuant to Section 3.1(a).
(f) Unless agreed to otherwise by all of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Members may contribute at 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 Plantime, each Member shall be given fund its pro rata portion of the opportunity aggregate Additional Capital Contributions specified in the notice delivered pursuant to make such additional Section 3.1(a) or 3.1(d) in accordance with its respective Percentage Interests at the time of the call. Each Member making 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(a)Article 3 shall receive one (1) additional Unit for each dollar of Additional Capital Contributions made by such contributing Member. For purposes of clarity, the limitations on dilution of AKS’ Percentage Interest contemplated by Section 2.3(b) hereof shall not apply to any dilution with respect to Additional Capital Contributions.
(1) With respect to Magnetation, Additional Capital Contributions up to the amount of funds held by the Company in the Magnetation Capital Reserve Account shall issue additional Units be mandatory, and the Company, on behalf of Magnetation, shall release funds from the Magnetation Capital Reserve Account in the amounts for which Magnetation is responsible pursuant to each contributing Memberthis Article 3 to an unrestricted account of the Company (unless Magnetation for some or all of its pro rata portion of the Additional Capital Contributions in its discretion contributes cash or other assets acceptable to AKS, with each new Unit being issued for in its fair market value. The sole discretion, valued at the fair market value thereof as of an additional Unit issued pursuant the applicable dates, in which event the amount released from the Magnetation Capital Reserve Account shall be adjusted accordingly). Additional Capital Contributions by Magnetation in excess of the amounts held in the Magnetation Capital Reserve Account shall be voluntary, subject to this Section 3.2(aclause (3) below.
(2) With respect to AKS, Additional Capital Contributions up to ninety nine and six tenths percent (99.6%) of the amount of funds held in the Magnetation Capital Reserve Account (the “AKS Matching Amount”) shall be determined mandatory. Additional Capital Contributions by dividing AKS in excess of such amount shall be voluntary, subject to clause (i3) below.
(3) The Calling Member shall be obligated to fund its pro rata portion of the aggregate Additional Capital Contributions specified in its notice delivered pursuant to Section 3.1(d)(iv).
(h) If any Member does not participate in any call for Additional Capital Contributions or participates in an amount that is less than its pro rata amount as set forth in Section 3.1(f) above, then each other Member who has so participated may, at its sole discretion and option, fund such amounts that have not been contributed to the capital of the Company Valuation by by:
(ii1) the number of Units outstanding immediately prior to such additional Making Additional Capital Contribution. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will be adjusted Contributions on a pro rata basis 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 accordance with the Percentage Interests of the all 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.participating in making up such shortfall, or
(b2) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing In lieu of the total amount of Noncontributing Member Capital Contributions not made (the “making Additional Capital Shortfall”)Contributions, causing the shortfall amount to be funded by loans extended by the participating Member(s) to the Company, such loans to have commercially reasonable terms (and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which loans shall not be less than an amount bearing the same ratio subject to the amount provisions of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Section 6.3(b)(6) or otherwise subject to the combined Percentage Interests of all approval of the Contributing Members. If the total amount Board of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleManagers).
Appears in 1 contract
Additional Capital Contributions. (a) From Additional Capital Contributions may be called for from the Members by the Management Committee by written notice to the Members from time to time, time as and to the extent capital is necessary to effect an investment or expenditures approved by the Management Committee, subject to approval . Except as otherwise agreed 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 be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by sixty-eight (68%) percent in the case of Bluerock and thirty-two (32%) percent in the case of Hawthorne. The Capital Contributions required to be made by Hawthorne shall be contributed or advanced, as the case may be, in cash by Hawthorne from its own sources (and shall not be borrowed or constitute proceeds from a Transfer of a direct or indirect interest in Hawthorne or the Interest of Hawthorne or otherwise). Such additional Capital Contribution needed, the purpose for which it is needed, the date Contributions shall be payable 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 upon the earlier of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) twenty (20) days after written request from the Company Valuation by Company, or (ii) the number of Units outstanding immediately prior to such additional date when the Capital Contribution. Immediately before issuing UnitsContribution is required, the Gross Asset Value of as set forth in a written request from 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.
(b) If a Member does (a “Defaulting Member”) fails to make a Capital Contribution that is required as provided in Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), the other Member, provided that it has made the Capital Contribution required to be made by it, in addition to any other remedies it may have hereunder or at law, shall have one or more of the following remedies:
(1) to advance to the Company on behalf of, and as a loan to the Defaulting Member, an amount equal to the Default Amount to be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be credited with the amount of such Default Amount attributable to a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the non-failing Member. Any Default Loan shall bear interest at the rate of twenty (20%) percent per annum, but in no event in excess of the highest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from the non-failing Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall accrue and compound on a quarterly basis. A Default Loan shall be prepayable, in whole or in part, at any time or from time to time without penalty. Any such Default Loans shall be with full recourse to the Defaulting Member and shall be secured by the Defaulting Member’s interest in the Company including, without limitation, such Defaulting Member’s right to Distributions. In furtherance thereof, upon the making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-failing Member and agrees to promptly execute such documents and statements reasonably requested by the non-failing Member to further evidence and secure such security interest. Any advance by the non-failing Member on behalf of a Defaulting Member pursuant to this Section 5.2(b)(1) shall be deemed to be a Capital Contribution made by the Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Member hereunder shall be applied first to payment of any interest due under any Default Loan and then to principal until all amounts due thereunder are paid in full. While any Default Loan is outstanding, the Company shall be obligated to pay directly to the non-failing Member, for application to and until all Default Loans have been paid in full, the amount of (x) any Distributions payable to the Defaulting Member, and (y) any proceeds of the sale of the Defaulting Member’s Interest in the Company;
(2) subject to any applicable thin capitalization limitations on indebtedness of the Company, to treat its portion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. If each Member has loans outstanding to the Company under this provision, such loans shall be payable to each Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be treated as a Capital Contribution made by the Defaulting Member;
(3) to make an additional Capital Contribution with respect to which the Company equal to the Default Amount whereupon the Percentage Interests of the Members shall be recalculated to (i) increase the non-defaulting Member’s Percentage Interest by the percentage (“Applicable Adjustment Percentage”) determined by dividing one hundred fifty percent (150%) of the Default Amount by the sum of the Members’ Total Investment (taking into account the actual amount of such Member has an option under Section 3.2(aadditional Capital Contribution) at and by increasing its Capital Account by one and one-half of the time specified amount of the Default Amount, and (ii) to reduce the Defaulting Member’s Percentage Interest by the Applicable Adjustment Percentage and by decreasing its Capital Account by one-half of the amount of the Default Amount; or
(4) in lieu of the notice remedies set forth in subparagraphs (a “Noncontributing Member”1), the Management Committee shall, within five (52) days after said failure. notify each other Member or (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”3), and shall specify a number revoke its portion of days within which each Contributing Member may make an such additional Capital Contribution, which shall not be less than an amount bearing whereupon the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all portion of the Contributing Members. If Capital Contribution made by the total amount non-failing Member shall be returned within ten (10) days with interest computed at the Default Loan Rate by the Company.
(c) Notwithstanding the foregoing provisions of Additional Capital Shortfall is not so contributedthis Section 5.2, the Management Committee may use any reasonable method to provide Members the opportunity to make no additional Capital Contributions until shall be required from any Member if (i) the Additional Company or any other Person shall be in default (or with notice or the passage of time or both, would be in default) in any material respect under any loan, indenture, mortgage, lease, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company (or any of its Subsidiaries) or any of its properties or assets is or may be bound, (ii) any other Member, the Company or any of its Subsidiaries shall be insolvent or bankrupt or in the process of liquidation, termination or dissolution, (iii) any other Member, the Company or any of its Subsidiaries shall be subjected to any pending litigation (x) in which the amount in controversy exceeds $500,000, (y) which litigation is not being defended by an insurance company who would be responsible for the payment of any judgment in such litigation, and (z) which litigation if adversely determined could have a material adverse effect on such other Member and/or the Company or any of its Subsidiaries and/or could interfere with their ability to perform their obligations hereunder or under any Collateral Agreement, (iv) there has been a material adverse change in (including, but not limited to, the financial condition of) any other Member (and/or its Affiliates) which, in Member’s reasonable judgment, prevents such other Member (and/or its Affiliates from performing, or substantially interferes with their ability to perform, their obligations hereunder or under any Collateral Agreement. If any of the foregoing events shall have occurred and any Member elects not to make a Capital Shortfall is as fully contributed as possibleContribution on account thereof, then any other Member which has made its pro rata share of such Capital Contribution shall be entitled to a return of such Capital Contribution from the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, 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 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 (i) the Company Valuation 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. All Additional Capital Contributions shall be made in cash by (ii) the number wire transfer of Units outstanding 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 shall re-compute from time to time. The Partners hereby agree that 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), Partners or the Management Committee shallCommittee, within five (5) days after said failure. notify each other Member (eachmay quarterly, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall or more frequently as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, Partners or the Management Committee may use any reasonable method determine, modify the Required Equity Percentage to provide Members such percentage as the opportunity Partners or the Management Committee, if such agreement is Approved by the Management Committee, agree is necessary to make additional reflect an appropriate level of equity; provided, however, that following the occurrence of a Withdrawal Date, the level of Required Equity Percentage shall be reviewed by the 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 Required Equity Percentage. The requirement of each Partner to maintain sufficient funds in its Capital Contributions until Account shall continue through the Additional Capital Shortfall is liquidation and/or wind-down and dissolution of the Partnership as fully contributed as possiblespecified in Article VIII hereof.
Appears in 1 contract
Sources: Partnership Agreement (Polaris 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 ▇▇▇▇▇▇▇ ▇▇▇▇. 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 ▇▇▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇ disputes the determination or call by Manager, by no later than the end of the thirty (30) day period, ▇▇▇▇▇▇▇ ▇▇▇▇ shall notify Manger in writing of ▇▇▇▇▇▇▇ ▇▇▇▇’▇ disagreement with the call, which such additional Capital Contributions are needed. The notice shall include the reasons ▇▇▇▇▇▇▇ ▇▇▇▇ believes the call is not appropriate. If within ten (10) business days after Manager’s receipt of ▇▇▇▇▇▇▇ ▇▇▇▇’▇ notice, neither the Hearthstone Affiliates nor ▇▇▇▇▇▇▇ ▇▇▇▇ have triggered the “Solomon’s Choice” election set forth in Section 19 below, ▇▇▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇ will be required to make any Additional Capital Contributions. Once 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 such Member’s Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a)is made by ▇▇▇▇▇▇▇ ▇▇▇▇, 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of such Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests Contribution shall be considered a Capital Contribution of ▇▇▇▇▇▇▇ ▇▇▇▇ for all other purposes of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblethis Agreement.
Appears in 1 contract
Sources: Operating Agreement (National Credit & Guaranty CORP)
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 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 Fund shall re37 43 contribute two-compute thirds (2/3rds) and LXP shall contribute one-third (1/3rd) of such additional capital. A member may contribute to the Percentage Interests of the Members based on the total number of Units held by each Member after the issuance of the additional Units Company an equity interest in any Approved Property and the total number of Units then outstanding.
(b) If a Member does not satisfy such Member's obligation to make an additional Additional Capital Contribution with respect to which thereto, provided that the Fair Market Value of such Member has an option under Section 3.2(a) equity contribution determined at the time specified in the notice (a “Noncontributing of such Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing 's contribution thereof shall be equal to such Member”) in writing 's share of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is Contribution required hereunder. If a Member decides to satisfy its obligations hereunder by contributing an equity share in 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 fully contributed as possibleprovided in this Section 5.1(b), which amount shall be applied to the purchase of such Approved Property, and (y) the equity-contributing member shall convey fee title to such Approved Property at the scheduled closing of the acquisition thereof.
Appears in 1 contract
Sources: Operating Agreement (Lexington Corporate Properties Trust)
Additional Capital Contributions. (a) From time to timeIn the event that the Company requires additional funding solely for the purpose of paying for Necessary Expenses or the development or acquisition of Qualifying Core Assets, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Board may determine to request that Capital Contributions in addition the Members make additional capital contributions to the Initial Members’ prior Company (each, an “Additional Capital Contributions are needed to enable Contribution”) and authorize the Company to conduct its business issuance of New Units in connection therewith (“ACC Units”) 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 procedures set forth in this Section 4.2. For the amount avoidance 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 Plandoubt, no Member shall be required have any obligation to make an additional Additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given Contributions to the opportunity to make such additional Capital Contribution in proportion to such Member’s Percentage Interest. Upon payment of an additional Capital Contribution Company pursuant to this Section 3.2(a4.2.
(b) If the Board determines to request that the Members make Additional Capital Contributions to the Company in accordance with Section 4.2(a), the Company shall issue additional Units a written request (a “Capital Call”) to each contributing Member, with each new Unit being issued of the Members for its fair market valuethe making of such Additional Capital Contributions. The fair market value of an additional Unit issued pursuant to this Section 3.2(a) Capital Call shall be determined by dividing specify (i) the Company Valuation by Fair Market Value per Unit, (ii) the number total amount of Units outstanding immediately prior to such additional Additional Capital Contribution. Immediately before issuing UnitsContributions requested from all Members (“Total Capital Call Amount”), 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 (iii) the total number of ACC Units held by proposed to be issued to the Members in connection therewith (which number, subject to clause (ii) of Section 4.2(f), shall be based on the Fair Market Value per Unit), (iv) the amount of the Additional Capital Contribution requested from each Member after (with respect to each Member, its “Proportionate Contribution Entitlement”) which with respect to each Member shall equal such Member’s Company Percentage Interest multiplied by the issuance Total Capital Call Amount, (v) the number of ACC Units proposed to be issued to each Member in connection therewith and (vi) a representation that the purpose of such Capital Call is (A) to fund Necessary Expenses required by the Company during the Contribution Option Period and which the Company reasonably anticipates are in excess of the additional Units funds reasonably available to the Company from other sources, together with a brief description of any such Necessary Expenses and the total number other sources of Units then outstandingfunding considered but which were unavailable or (B) for the development or acquisition of Qualifying Core Assets, together with a brief description of such Qualifying Core Assets and the other sources of funding considered but which were unavailable.
(bc) If The total amount of Additional Capital Contributions requested pursuant to a Capital Call and each Member’s Proportionate Contribution Entitlement shall be calculated so as to ensure that, if each Member made an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement, the ACC Units issued would not result in any change to either Member’s Company Percentage Interest. Each Member acknowledges that by declining to make an Additional Capital Contribution pursuant to a Capital Call in the full amount of such Member’s Proportionate Contribution Entitlement, its Company Percentage Interest may be diluted in accordance with the terms of this Section 4.2, including Section 4.2(h), unless otherwise agreed by the parties.
(d) Within forty-five (45) days following receipt of a Capital Call (the “Contribution Option Period”), each Member shall send a written notice to the Company either (i) declining to make an Additional Capital Contribution pursuant to the Capital Call or (ii) agreeing to make part or all of the Member’s Proportionate Contribution Entitlement and stating what portion of the Member’s Proportionate Contribution Entitlement it shall make. Any Member that does not send a notice within the Contribution Option Period shall be deemed to have declined to make an additional any Additional Capital Contribution with respect pursuant to which such Member has an option under Section 3.2(athe Capital Call.
(e) at Within five (5) Business Days following the time specified in expiration of the Contribution Option Period, the Company shall give written notice (a “Noncontributing Contribution Notice”) to each Member specifying the amount of each Member’s Proportionate Contribution Entitlement and the amount of the Additional Capital Contribution that each Member agreed to make. In the event that any Member(s) have not elected to make an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement (each such Member, a “Non-Contributing Member”), ) and other Member(s) have elected to make an Additional Capital Contribution in the Management Committee shall, within five full amount of their respective Proportionate Contribution Entitlement (5) days after said failure. notify each other Member (eachsuch Member, a “Contributing Member”), then such Contributing Member(s) shall have the right to (x) increase the amount of their respective Additional Capital Contribution to include all or any portion of the Non-Contributing Member’s Proportionate Contribution Entitlement that the Non-Contributing Member declined to make (such amount, a “Residual Contribution Amount”) in accordance with Section 4.2(f) and (y) receive from the Company a number of ACC Units based on the Fair Market Value per Unit in exchange for its Additional Capital Contribution.
(f) Within ten (10) Business Days following receipt of a Contribution Notice showing a Residual Contribution Amount (the “Residual Exercise Period”), each Contributing Member shall send a written notice (a “Residual Exercise Notice”) to the Company either (i) declining to increase the amount of its Additional Capital Contribution to include any portion of the Residual Contribution Amount or (ii) exercising its right to increase its Additional Capital Contribution and stating the portion of the Residual Contribution Amount by which it desires to increase its Additional Capital Contribution (the “Additional Elected Portion”); provided, that if the sum of the proposed Additional Capital Contributions set forth in all Residual Exercise Notices exceeds the Residual Contribution Amount, then the Residual Contribution Amount shall be allocated (A) first so that each Contributing Member shall be entitled to the lesser of (x) such Contributing Member’s Additional Elected Portion and (y) such Contributing Member’s Company Percentage Interest multiplied by the Residual Contribution Amount and (B) second, if there remains any Residual Contribution Amount (if any) after the allocation in clause (A) such remaining amount shall be allocated among the Contributing Members who have not received their full Additional Elected Portion in accordance with the methodology in clause (A) mutatis mutandis in successive iterations until the full Residual Contribution Amount is allocated; provided, however, that for the avoidance of doubt, as long as Cinergy’s Company Percentage Interest is greater than eighty percent (80%), if Cinergy delivers a Residual Exercise Notice exercising its right to increase its Additional Capital Contribution with respect to at least eighty percent (80%) of the total Residual Contribution Amount, Cinergy’s Additional Capital Contribution shall be at least eighty percent (80%) of the total Residual Contribution Amount. If a Contributing Member does not send a Residual Exercise Notice within the Residual Exercise Period, it shall be deemed to have waived its right to increase the amount of its Additional Capital Contribution pursuant to Section 4.2(e).
(g) At the expiration of the Contribution Option Period or the Residual Exercise Period, as applicable, any Member electing to make an Additional Capital Contribution pursuant to Section 4.2(d) and Section 4.2(f) (an “Electing Member”) shall make such Additional Capital Contribution within ten (10) Business Days following its receipt of a Contribution Notice or Residual Exercise Notice, as applicable, or within ten (10) Business Days following the receipt of any and all required regulatory approvals, whichever is later (such date, the “ACC Deadline”), and the Company shall issue ACC Units in connection therewith as promptly as practicable thereafter. In addition, the Company and any Electing Member shall take all such other actions as may be reasonably necessary to complete such Additional Capital Contribution, including entering into such additional agreements as may be necessary or appropriate.
(h) With respect to any Capital Call to fund Necessary Expenses required by the Company during the Contribution Option Period and for which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources (i.e., insufficient budgeted reserves or other sources of liquidity) (for which the Contribution Notice in respect of such Capital Call shall state is pursuant to this Section 4.2(h)), any Member may elect to contribute part or all of its (and, if any other Member is not electing to contribute its Proportionate Contribution Entitlement for purposes of this Section 4.2(h), any other Member’s) Proportionate Contribution Entitlement of the Additional Capital Contributions in respect of the related request therefor (collectively, the “Emergency Advance”) and such Emergency Advance will be treated as a loan from such Member(s) to the Company; provided that a Member must notify the other Members in writing of the total amount of Noncontributing such Emergency Advance at least five (5) Business Days prior to the contribution thereof. If a Member Capital Contributions not made (the “Additional Capital Shortfall”has elected to contribute all or part of its or another Member’s Proportionate Contribution Entitlement pursuant to this Section 4.2(h), and shall specify a number upon contribution of days within which the Proportionate Contribution Entitlements by each Contributing Member may make as an additional Additional Capital Contribution, which the Company shall not be less than pay directly to the Member making the Emergency Advance an amount bearing equal to the same ratio Emergency Advance made by such Member plus an additional amount of interest thereon equal to nine percent (9%) per annum from the date of the Emergency Advance to the date of repayment of such Emergency Advance, and; provided, further, if the other Members do not elect to contribute to the Company their pro rata share of the amount of the Emergency Advance (together with interest thereon as aforesaid), then the amount such Member has contributed (including both its and any other Members’ portion thereof), including interest thereon as aforesaid, will be designated as an Additional Capital Shortfall as Contribution and the Contributing Company may issue ACC Units in connection therewith without any further obligation to any other Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Duke Energy Indiana, LLC)
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 ▇▇▇▇▇▇▇ (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 Ca▇▇▇▇▇ ▇ontribution to the Initial Company (a "Maguire Member Additional Capital Contribution") or notify the Manag▇▇▇ ▇▇▇ber of their decision not to do so. A Maguire Member's failure to notify the Managing Member of its decisi▇▇ ▇▇ ▇ake a Maguire Member Additional Capital Contribution within such 10 Busine▇▇ ▇▇▇ period shall be deemed to be a notification that such Maguire Member(s) has decided not to make any such Additional Capita▇ ▇▇▇▇▇ibution. Any amounts so contributed to the Company pursuant to the Maguire Member Additional Capital Contribution shall be added to the ▇▇▇▇▇▇nt Maguire Member's Capital Account. In the event the Maguire Members f▇▇▇ ▇▇ make the Maguire Member Additional Capital C▇▇▇▇▇▇▇tions in an amount equal t▇ ▇▇▇ ▇dditional Capital Required within such 20 Business Days' period, RECP may, at its sole discretion, make an additional Capital Contribution (the "RECP Additional Capital Contribution") in an amount equal to any portion of the Additional Capital Required not contributed by the Maguire Members’ .
(b) ▇▇ ▇ddition, each of the Maguire Members shall have the right (but not the obligation) to mak▇ ▇ ▇▇▇uire Member Additional Capital Contribution for the purpose of cu▇▇▇▇ ▇▇w Subordinated Debt or Existing Mortgage Debt defaults at any time at least two Business Days prior to the expiration of any applicable cure period in respect of such defaults.
(c) RECP shall not be entitled to make any Additional Capital Contributions are needed Contribution except as provided in section 7.3(a) above, provided, however, that in the event of a payment that the Managing Member determines, in good faith, to be an emergency (e.g., an expense necessary to prevent the incurrence by the Company of penalties or late fees, or to preserve human health and/or safety), RECP may make such contribution and provide the Maguire Members with notice of such contribution promptly (which not▇▇▇ ▇▇▇l specify the amount of the proposed contribution and the purpose for which the contribution is being made) after it is made. Immediately upon receiving notice that RECP has funded any emergency contribution, the Maguire Members will have ten Business Days to contribute to the Com▇▇▇▇ ▇▇nds necessary to enable the Company to conduct its business in accordance reimburse RECP for any such emergency contribution together with the Work Plan. On making such a determination, the Management Committee shall give written notice of such determination to all Members interest thereon at least thirty 25% per annum (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(acompounded monthly), 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total Maguire Members do not make such payment within such ten Business Da▇ ▇▇▇▇▇d, the amount of so contributed by RECP shall be considered an Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContribution of RECP.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Maguire Properties Inc)
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 Member after the issuance of the additional Units and the total number of Units then outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other non- contributing Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”including all proceeds therefrom), and the non-contributing Member shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio assign to the amount contributing Member all dividends, distributions and other proceeds that would have otherwise been paid to it in respect of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage such Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall until such note and interest thereon is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblerepaid in full.
Appears in 1 contract
Sources: Limited Liability Company Agreement
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.
(b) If a In the event any Member does not ("NON-CONTRIBUTING MEMBER") shall fail to make an additional its portion of any such Additional Capital Contribution with respect to which (but only when such Member has an option unfunded commitment to the Company under Section SECTION 3.2(a)) at within the time period specified in the notice Notification (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than 10 days after such Member's receipt of such Notification from the Manager), then the other Member (the "CONTRIBUTING MEMBER") shall have the right, but not the obligation, to advance directly to the Company the funds required from the Non-Contributing Member as a loan to the Company (the "CONTRIBUTION LOAN") in accordance with the provisions of SECTION 3.2(c). At the option of the Contributing Member and unless prohibited by a Financing, repayment of a Contribution Loan may be secured by the Non-Contributing Member's interest in the equity of one or more of the Company's Projects so that the Contribution Loan qualifies as a "real estate asset" within the meaning of Section 856(c)(5)(B) of the Code.
(c) In the event the Contributing Member elects to make a Contribution Loan, then the Contribution Loan shall bear interest at a rate equal to the lesser of (i) the Prime Rate plus 5% per annum, compounded monthly, or (ii) the maximum rate of interest then permitted by law, compounded monthly, and, except as set forth in SECTION 3.2(d), shall be repaid out of any subsequent Distributions made pursuant to this Agreement otherwise payable to the Non-Contributing Member, which amounts shall be applied first to interest and then to principal, until the Contribution Loan is paid in full.
(d) In the event any Contribution Loan has not been repaid in full within 45 days after the date the Contribution Loan is made, then, at any time thereafter the Contributing Member may elect to take any of the following actions:
(i) allow the Contribution Loan to remain outstanding, in which event the Contribution Loan shall continue to bear interest and be repaid as provided in SECTION 3.2(c) above; or
(ii) treat the outstanding principal balance of the Contribution Loan and any accrued and unpaid interest thereon (the "CONTRIBUTION DEFICIENCY") as an amount bearing Additional Capital Contribution by the same ratio to Contributing Member, and the Percentage Interest of each Member shall thereupon be recalculated as of the effective date of the Notification of such election as follows: The Contributing Member's Percentage Interest shall be increased, and the Non-Contributing Member's Percentage Interest shall be decreased, by the percentage equivalent of a fraction in which the numerator is 105% of the Contribution Deficiency and the denominator is the amount of Additional the Capital Shortfall as Contributions of the Contributing Member’s Percentage Interest bears to Members plus 105% of the combined Contribution Deficiency. For example, assume the Percentage Interests of BPOP and CalPERS are 20% and 80%, respectively, and the Capital Contributions of BPOP and CalPERS are $62.5 Million and $250 Million, respectively, and that CalPERS makes its share of a total $50 Million Additional Capital Contribution call but BPOP does not so that the Contribution Deficiency equals $10 Million. In this case, if CalPERS so elects, then the Percentage Interest of BPOP would be reduced, and CalPERS' Percentage Interest would be increased, by 2.89256% ($10,500,000 / ($352,500,000 + $10,500,000)); or
(iii) the Contributing Member may treat the failure to repay the current Contribution Loan as an Event of Default under this Agreement upon the giving of written notice to the Non-Contributing Member and the expiration of 30 days without such Contribution Loan being repaid, in which event the Contributing Member shall be entitled to exercise all of the Contributing Members. If remedies upon an Event of Default as are set forth in ARTICLE V.
(e) The right of the total amount of Manager to require any Additional Capital Shortfall is Contributions under the terms of this Agreement shall not so contributedbe construed as conferring any rights or benefits to or upon any Person not a party to this Agreement, including, but not limited to, any creditor of the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCompany.
Appears in 1 contract
Sources: Operating Agreement (Burnham Pacific Properties Inc)
Additional Capital Contributions. (a) From The Members agree that it is their intention that following the contribution of the Mandatory Capital Contributions by each Member, the annual capital and operating requirements of each Series as reflected in each Series Operating Budget shall be funded from the operating Cash flow of each Series. Notwithstanding the foregoing, the Board may from time to timetime approve the issuance of a notice (each a “Capital Call Notice”) to each Member holding Units in a Series for the making of additional Capital Contributions to that Series at such times and such amounts as the Board reasonably determines (each a “Capital Call”). Among other things, the Management CommitteeCapital Call Notice shall specify the purpose for which the requested Capital Contributions will be used, subject and the Unit value established for such Capital Call (with such Unit value to approval be established by a Supermajority the Board in Interest good faith and based on the then-current FMV of the applicable Series). Within fifteen (15) Business Days of the relevant Capital Call Notice (or such later date as may be mutually agreed by the Members), may determine that the Members shall make Capital Contributions in addition to the Initial Members’ prior Capital Contributions are needed to enable the Company to conduct its business pro rata in accordance with the Work Plan. On making such a determinationMembers’ relative applicable Series Member Percentage as of the date of the relevant Capital Call (each Member’s pro rata share, 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 “Contribution Amount”). All 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 made in Cash or Cash Equivalent, unless the Board agrees to make an additional Capital Contributionrequest or accept the Contribution Amount other than in Cash. However, except as contemplated All Contribution Amounts timely received 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 a Series 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(a11(a) shall be determined by dividing (i) credited to the Company Valuation by (ii) the number respective Member’s applicable Series Capital Account as 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 outstandingspecified date.
(b) If In the event that any Member fails to pay its Contribution Amount as required pursuant to a Member does not make an additional Capital Call within fifteen (15) Business Days of the relevant Capital Call Notice (or such later date as may be mutually agreed by the Members) (the amount of such unpaid Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (Amount, a “Noncontributing Capital Shortfall Amount”, and such Member, the “Non- Contributing Member”), and if one (1) or more of the Management Committee shall, within five other Members (5) days after said failure. notify each other Member (each, a the “Contributing Member”) has timely paid to the applicable Series its Contribution Amount in writing full, then the Board (without objection or interference from the Non-Contributing Member) shall provide notice of such Capital Call shortfall on the next day to the Members of that Series, specifying the Capital Shortfall Amount, and the mechanism and remedies associated with a Member Loan (but specifically excluding those associated with a Default Capital Contribution) set forth below shall apply. If the Contributing Member elects to fund the Capital Shortfall Amount on behalf of the total Non-Contributing Member, such amount shall be funded as a loan to the Company for the benefit of the applicable Series to which the Mandatory Capital Contribution corresponds (each such loan, a “Member Loan”). Each such Member Loan shall bear interest (compounded monthly on the first day of each calendar month) at the Default Rate and shall be recourse debt of the Company. Any Member Loan shall be immediately due and payable in full upon a Transfer (other than a Permitted Transfer) by a Non-Contributing Member. Until such time as all Member Loans have been repaid to the Contributing Member, there shall be an offset from Distributable Cash used to repay such Member Loan in advance of the making of any distributions to the Members of such Series.
(c) It is the intention of the Members to treat and classify each Series that has multiple owners of equity interests as a partnership for federal, state, and local income tax purposes, and that the following provisions shall apply separately with regard to each such Series:
(i) A single, separate capital account (each a Member’s “Series Capital Account”) shall be established and maintained with respect to each Series for each Member holding an interest in that Series. Each Member’s Series Capital Account shall be credited with the amount of Noncontributing money and the FMV of property other than money (net of any liabilities secured by such contributed property that the applicable Series assumes or takes subject to) contributed by that Member Capital Contributions not made to such Series, the amount of any Series liabilities assumed by such Member (the “Additional Capital Shortfall”if any, other than in connection with a distribution of Series property), and such Member’s distributive share of Series Net Profit (including tax exempt income) and any items of Series income or gain specially allocated to that Member. Each Member’s Series Capital Account shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to debited with the amount of Additional Capital Shortfall as money and the Contributing FMV of property other than money (net of any liabilities that such Member assumes or takes subject to) distributed to such Member by the applicable Series, the amount of any liabilities of such Member assumed by the applicable Series (if any, other than in connection with a contribution), and such Member’s Percentage Interest bears distributive share of Series Net Loss (including items that may be neither deducted nor capitalized for federal income tax purposes) and any items of Series loss, or deduction specially allocated to that Member.
(ii) Notwithstanding any provision of this Agreement to the combined Percentage Interests contrary, each Member’s Series Capital Account shall be maintained and adjusted in accordance with the Code and the Treasury Regulations, as reasonably determined by the Board, including, without limitation, by making the adjustments permitted or required by Code Section 704(b) and the Treasury Regulations promulgated thereunder.
(iii) Any Member, including any substitute Member, who shall receive a Membership Interest (or whose Membership Interest shall be increased) by means of a transfer to such Member of all or a part of the Contributing MembersMembership Interest of another Member, shall have a Series Capital Account that reflects the applicable Series Capital Account associated with the transferred Membership Interest (or the applicable percentage thereof in case of a transfer of a part of a Membership Interest).
(iv) No Member with Adjusted Series Capital Account Deficit shall be obligated to restore such deficit balance or make a Capital Contribution to a Series solely by reason of such deficit, whether before upon or after a termination and liquidation of such Series.
(v) Except as otherwise expressly provided in this Agreement, no Member may withdraw any portion of its Series Capital Account.
(vi) The fiscal year of each Series shall be a calendar year. If The books and records of each Series shall be maintained in accordance with generally accepted accounting principles and the total amount Series Capital Accounts shall be maintained in accordance with Section 704(b) of Additional the Code and the Treasury Regulations thereunder. The Members shall cause the Company to establish and maintain accurate books, records and accounts, which reflect in reasonable detail the transactions and dispositions of the assets of the Company and each Series in accordance with applicable accounting practices and procedures.
(d) For each Fiscal Year (or portion thereof) of a Series, except as otherwise provided in this Agreement, Series Net Profit and Series Net Loss (and, to the extent necessary, individual items of Series gross income, gain, loss, or deduction) shall be allocated among the Members of such Series in a manner such that, after giving effect to the special allocations set forth in Section 11(e) the Series Capital Shortfall is not so contributedAccount balance of each Member, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is immediately after making such allocations, is, as fully contributed nearly as possible, equal to (i) the distributions that would be made to such Member in respect of such Series pursuant to Section 18(b) if such Series were dissolved, its affairs wound up and its assets sold for Cash equal to their Book Value, all Series liabilities were satisfied (limited with respect to each Nonrecourse Liability to the Book Value of the assets securing such liability), and the net assets of the Series were distributed, in accordance with Section 18(b), to the Members immediately after making such allocations, minus (ii) such Member’s share of Series Minimum Gain and Member Nonrecourse Series Minimum Gain, computed immediately prior to the hypothetical sale of assets.
Appears in 1 contract
Sources: Limited Liability Company Agreement (OPAL Fuels Inc.)
Additional Capital Contributions. (a) From 8.2.1 No Class A Member shall be obligated to contribute additional capital to the Company. No Class A Member shall be permitted or authorized to make any additional Capital Contributions without the prior approval of the Manager. Additional Capital Contributions may be necessary to accomplish the purposes and objectives of the Company. Additional Capital Contributions may be made by the Class A Members when determined necessary, from time to time, in the Management Committee, subject to amounts and representing such Percentage Interest and within the time determined by the 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 PlanManager. 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 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 payable in proportion to such each Class A Member’s Percentage Interest. Upon payment If the then current Class A Members are unable or unwilling to meet the demand for Additional Capital Contributions, the Class A Members acknowledge that new Members may be added at the time additional capital is required on terms no more favorable than was offered to the existing Class A Members. The Class A Members acknowledge that their Membership Interests may change (including being diluted) from time to time as a result of an adding new Members to obtain Additional Capital Contributions. In the event that one or more Class A Members is unable or unwilling to contribute Additional Capital, then the Manager(s) may amend this Agreement to admit new Members on terms no more favorable than was offered to the existing Members. However, this Section is not for the benefit of any creditors of the Company. No creditor of the Company may obtain any right under this paragraph to make any claim that a Class A Member is obligated to contribute capital to the Company for the purpose of satisfying the Company’s creditors. BENCHMARK REAL ESTATE FUND 23 OPERATING AGREEMENT
8.2.2 Such Class A Member or Members making Additional Capital Contributions shall receive a Capital Account credit for each 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 outstanding.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified and in the notice (a “Noncontributing Member”), amount that such contribution is made and the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”)related Percentage Interests, and Exhibits “1” and “2” shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio adjusted accordingly as to the amount of Additional Capital Shortfall as capital contributed and the Contributing Member’s Percentage Interest bears to the combined related Percentage Interests of for all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Sources: Operating Agreement (Benchmark Real Estate Investment Fund, LLC)
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) for development and tenant improvement costs and other capital expenditures contemplated by the Approved Budget and Operating Plan, subject (ii) to approval by a Supermajority in Interest meet the ongoing obligations, liabilities, Operating Expenses or 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 then applicable Approved Budget or Operating Plan. On making such a determination, or to pay Necessary Expenses or other costs which are not provided for in the Approved Budget and Operating Plan, but which are Approved by BH to the extent not covered by the Initial Capital Contributions, or (iii) for any other purpose Approved by BH, the Management Committee Managing Member may (but 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 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(aobligated to), the Company shall issue additional Units to require that 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 contribute its pro rata share (based on upon the total number of Units held by each Member after the issuance Contribution Percentages of the additional Units and Members at the total number time of Units then outstandingsuch request) of such Shortfall (any such contribution, an “Additional Capital Contribution”). If so requested by the Managing Member or a Member pursuant to the foregoing provisions, such contributions shall be due within five (5) Business Days thereafter (or by the 1st calendar day of the next month, whichever is later).
(b) If Notwithstanding anything to the contrary contained herein, a failure by any Member does not to make an additional any Additional Capital Contribution with respect to which the extent required or requested hereunder shall not constitute an Event of Default by such Member has an option under and the sole consequences of such failure shall be as set forth in this Section 3.2(a4.2. If BH or HP (the “Non-Contributing Party”) at fails to timely make all or any portion of any Additional Capital Contribution as required pursuant to Section 4.2(a) above and the time specified in other party (the notice “Contributing Party”) makes all of its share of any Additional Capital Contribution as required pursuant to Section 4.2(a) above, then the Contributing Party may make the full amount of such Additional Capital Contribution on behalf of the Non-Contributing Party (any such Capital Contribution by a Contributing Party, a “Noncontributing MemberSubstitute Contribution”). In such an event, the Management Committee shall, Contributing Party may elect by written notice given within five (5) Business Days of making the Substitute Contribution either (i) to treat the entire amount contributed by the Contributing Party (including both the Contributing Party’s and the Non-Contributing Party’s pro rata portion thereof) as a Priority Capital Contribution (a “Priority Capital Contribution”) by such Contributing Party in accordance with Section 4.2(c) below, or (ii) to treat the Substitute Contribution as a regular Capital Contribution in accordance with Section 4.2(d) below.
(c) To the extent any Contributing Party elects to treat its own Additional Capital Contribution and such Substitute Contribution as a Priority Capital Contribution, such Priority Capital Contribution shall be returned on a priority basis together with an eighteen percent (18%) per annum cumulative annual preferred return thereon as provided in Section 6.3(a) and/or Section 6.4(a), as applicable.
(d) If a Contributing Party elects to treat a Substitute Contribution as a regular Capital Contribution, then the Contribution Percentage of the Contributing Party shall be adjusted to equal the percentage equivalent of the quotient determined by dividing:
(i) the positive difference, if any, between:
(A) the sum of (I) one hundred percent (100%) of the aggregate Capital Contributions (excluding Substitute Contributions) then or theretofore made by such Member to the Company, plus (II) two hundred percent (200%) of the Substitute Contributions then or theretofore made by such Member to the Company (the excess of 200% of such Member’s Substitute Contributions over the actual amount of such Member’s Substituted Contributions is referred to herein as the “Excess Amounts”); minus
(B) the Substitute Contributions then or theretofore made by the other Member to the Company; by
(ii) one hundred percent (100%) of the aggregate Capital Contributions (including, without limitation, Substitute Contributions) then or theretofore made by all of the Members to the Company. and the Contribution Percentage of the Non-Contributing Party shall be reduced by the percentage necessary to insure that the Contribution Percentages add up to 100%. At the same time, the Promote Percentages of each Member shall be adjusted (increased or decreased in the same proportions as the Contribution Percentages were adjusted pursuant to the foregoing provisions (e.g., if a Member’s Contribution Percentage is reduced by half or 50%, then the Promote Percentages of such Member will also be reduced by half or 50%). In addition, an amount of Unreturned Capital Contributions equal to such Excess Amount shall be treated as having been transferred from the Non-Contributing Party to the Contributing Party but such transfer shall be solely for the purpose of computing preferred return pursuant to Sections 6.3(b) and 6.4(b) and Unreturned Capital Contributions pursuant to Section 6.4(c) with the result that each Member will have Unreturned Capital Contributions in proportion to its adjusted Contribution Percentage after giving effect to such transfer. The Capital Accounts shall be adjusted accordingly. Any Non-Contributing Party shall have until seventy-five (75) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member date on which its missed Additional Capital Contributions not made Contribution (the “Additional Capital ShortfallMissed Contribution”), and shall specify a number of days within which each ) was due in order to cure its failure to make such Missed Contribution by depositing into an account designated by the Contributing Member may make an additional Capital Contribution, which shall not be less than Party an amount bearing the same ratio equal to the amount of Additional Capital Shortfall as the Missed Contribution together with interest thereon at a eighteen percent (18%) per annum rate from the due date established by the Managing Member until such amount has been so deposited in full into such account, at which point such amount shall promptly be distributed to the Contributing Member’s Percentage Interest bears Party if and to the combined Percentage Interests of all extent the Contributing Party made a Substitute Contribution on account of the Contributing MembersMissed Contribution. If the total amount Non-Contributing Party makes such deposits as aforesaid, any adjustment to Contribution Percentages, dilution to Promote Percentages (and the distributions affected thereby) and transfers of Unreturned Capital Contributions caused by its failure to make the applicable Additional Capital Shortfall is Contribution shall be unwound, and the payment, dilution and transfers described above shall not so contributedbe reflected in the Members’ Capital Accounts.
(e) Each Member acknowledges and agrees that the other Members would not be entering into this Agreement were it not for (i) the Members agreeing to make the Capital Contributions provided for in this Section 4.2, and (ii) the remedy provisions set forth above in this Section 4.2. Each Member acknowledges and agrees that in the event any Member fails to make its Capital Contributions pursuant to this Agreement, the Management Committee may use any reasonable method to provide other Members will suffer substantial damages and the opportunity to make additional remedy provisions set forth above are fair, just and equitable in all respects.
(f) All Capital Contributions until shall be made by wire transfer of funds to accounts designated by the Additional Capital Shortfall is as fully contributed as possibleManaging Member from time to time.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
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 the contribute such additional capital in accordance with their respective 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failureInterests. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing A Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio contribute to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Company an Approved Qualified Property, or an equity interest therein, pursuant to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleContribution Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Lexington Corporate Properties Trust)
Additional Capital Contributions. (a) From time to timeThe Preferred Members may make Additional Capital Contributions other than as set forth in Section 2.3(b) below only with the approval of the Management Committee as set forth in Section 5.6(c) below. Upon such approval, the Management Committee, subject Preferred Members shall be obligated to approval by a Supermajority in Interest of the Members, may determine that make Additional Capital Contributions in addition to the Initial Members’ prior accordance with such approval. If such Additional Capital Contributions are needed made by the Preferred Members other than pro rata to enable their respective Preferred Percentage Interests, the Company shall issue to conduct its business each Preferred Member making an Additional Capital Contribution additional Preferred Units as provided in accordance Section 2.3(c) below.
(b) If any Preferred Member determines in good faith after full and complete consultation with the Work PlanManagers and senior management of the Company that the Company requires Additional Capital Contributions to avoid or cure a Liquidity Crisis with respect to the Company, such Preferred Member shall have the right (but not the obligation) to request in writing that the Management Committee make a capital call; provided, that, the requesting Preferred Member is willing and able to fund the entire capital call, if necessary, and reasonably demonstrates evidence of committed funds available for this purpose. On making Such written request shall include a reasonably detailed description of the nature and cause (if known) of the Liquidity Crisis and the aggregate minimum amount (including the calculation thereof) required to be raised by such a determinationcapital call to address such Liquidity Crisis. Within five Business Days following receipt of such written request, the Management Committee shall give cause the Company to make a capital call to each Preferred Member by written notice that sets forth the aggregate amount of such determination capital call (which shall equal the aggregate amount requested by the requesting Preferred Member) and each Preferred Member’s pro rata (based on Preferred Percentage Interest) share of such capital call. Within ten Business Days of such capital call, each Preferred Member shall, in its sole and absolute discretion, (i) elect by written notice not to make an Additional Capital Contribution in response to such capital call (which option shall not be available to the Preferred Member requesting such capital call) or (ii) make up to its pro rata (based on Preferred Percentage Interest) share of such capital call by wire transfer of immediately available U.S. funds. The Company shall promptly notify the Preferred Members in writing of any shortfall in the capital call and provide each Preferred Member that made a pro rata (based on Preferred Percentage Interest) Additional Capital Contribution with five Business Days to elect in writing, in its sole and absolute discretion, to make a further Additional Capital Contribution equal to some or all of such shortfall (if such further Additional Capital Contributions exceed such shortfall, the Company shall make reductions on a pro rata basis). The Company shall promptly notify each Preferred Member in writing of the aggregate Additional Capital Contributions elected by each Preferred Member and, if any further shortfall remains, the further Additional Capital Contribution required to be made by the Preferred Member requesting the capital call equal to such further shortfall. The Preferred Members at least thirty (30) days before shall make the date on which Additional Capital Contributions to the Company set forth in such additional notice within five Business Days of receipt of such notice by wire transfer of immediately available U.S. funds. The Company shall use all funds raised by such capital call to resolve the Liquidity Crisis prompting such capital call. If in response to such capital call, Additional Capital Contributions are needed. The notice shall set forth made by the amount of additional Capital Contribution needed, the purpose for which it is needed, the date by which the Preferred 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 other than pro rata 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 their respective Preferred Percentage Interest. Upon payment of an additional Capital Contribution pursuant to this Section 3.2(a)Interests, the Company shall issue additional Units to each contributing Preferred Member making an Additional Capital Contribution additional Preferred Units as provided in Section 2.3(c) below.
(c) If Additional Capital Contributions are made by the Preferred Members pursuant to Section 2.3(a) or 2.3(b) above other than pro rata to their respective Preferred Percentage Interests, the Company shall issue to each Preferred Member making an Additional Capital Contribution additional Preferred Units equal to the amount of such Additional Capital Contribution made by such Preferred Member, divided by the Net Equity per Preferred Unit (calculated prior to the making of such Additional Capital Contributions by the Preferred Members and with the Management Committee selecting the First Appraiser and Second Appraiser), and shall adjust the Preferred Percentage Interest and Percentage Interest of each new Unit being issued for its fair market valuePreferred Member accordingly. 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 immediately prior to the making of such Additional Capital Contributions shall be adjusted to equal the Gross Appraised Value used to determine the Net Equity per Preferred Unit.
(d) If any Preferred Member commits to make an Additional Capital Contribution pursuant to Section 2.3(a) or 2.3(b) above and fails to do so, in a manner provided addition to any other remedies available to the other Preferred Members under this Agreement, the definition of Gross Asset Value in Appendix 1 attached hereto, and other Preferred Members shall be entitled to make further Additional Capital Accounts will reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, Contributions as determined by the Management Committee shall re-compute (excluding the Percentage Interests of Managers designated by 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing failing Preferred Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total an aggregate amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio equal to the amount of such Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Contribution such failing Preferred Member has failed to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblemake.
Appears in 1 contract
Additional Capital Contributions. (a) From If at any time to time, the Management Committee, subject to approval by a Supermajority in Interest of the Members, may Managers determine that Capital Contributions in addition to the Initial Members’ prior Capital Contributions additional funds are needed required to enable the Company to conduct accomplish its business purposes, then the Managers may borrow or otherwise obtain such funds from third parties or any one or more Members on terms the Managers determine are reasonable or may request that each of the Class A Members contribute cash to the Company in accordance with proportion to his, her or its respective Target Percentage Interest relative to all Class A Members’ Target Percentage Interest at such times and in such amounts as the Work PlanManagers shall specify. On making The Managers may, for example, provide that such additional capital will have a determinationpriority in repayment and a return thereon, and that those not contributing their share will have their Target Percentage Interests diluted. The terms specified by the Management Committee Managers shall give written notice not be subject to question by any Person so long as each Class A Member is given the opportunity to contribute his, her or its Target Percentage Interest relative to all Class A Members’ Target Percentage Interest of such additional capital and dilution of a noncontributing Member is based on the Managers’ reasonable determination to all Members at least thirty of the value of the Company’s assets, net of liabilities.
(30b) days before Notwithstanding 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 notforegoing, in the opinion event that the Company shall have or be offered any preemptive or other right to invest additional capital into the Investment Entity to protect against dilution of the Management CommitteeInitial Founder Shares, appropriate then the Managers will provide each Class A Member with the right to contribute his, her or its pro rata share (based on such Class A Member’s Target Percentage Interest relative to all Class A Members’ Target Percentage) of any capital to be invested by the Company in lieu the Investment Entity to protect against dilution of the Company’s interest in the Initial Founder Shares.
(c) Each Class A Member acknowledges that if such Class A Member does not contribute his, her or its pro rata share of any capital which he, she or it has an opportunity to contribute pursuant to Section 3.2(a) or Section 3.2(b), his, her or its interest in the Company may be diluted. Each Class B Member and Class C Member acknowledges that its interest in the Company will be diluted in the event any Class A Member contributes such capital. Notwithstanding anything in this Agreement to the contrary, verbal notice from the Managers of a Capital Contributionrequest or opportunity, as the case may be, to contribute additional capital shall be sufficient; provided that such notice is confirmed in writing at least three (3) business days prior to the due date for such capital. Except for services as contemplated by an applicable Work Plan, no No Member shall be required to make an any additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each contribution to the capital of the Company and no Member shall be given the opportunity in default under this Agreement as a result of his, her or its failure to make such contribute his, her or its share of any 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 outstandingcapital.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
Additional Capital Contributions. (a) From time to timeIn the event that the Company has additional funding needs other than those addressed by the Subscription Agreement, the Management Committee, subject to approval by a Supermajority in Interest of the Members, Board may determine to request that Capital Contributions in addition the Shareholders make additional capital contributions to the Initial Members’ prior Company (each, an “Additional Capital Contributions are needed to enable Contribution”) and authorize the Company to conduct its business issuance of New Shares in connection therewith (“ACC Shares”) in accordance with the Work Planprocedures set forth in this Section 4.2. On making such a determinationFor the avoidance of doubt, the Management Committee neither Shareholder shall give written notice of such determination have any obligation to all Members at least thirty (30) days before the date on which such additional make Additional Capital Contributions are needed. The notice shall set forth 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 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 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 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 outstanding4.2.
(b) If the Board determines to request that the Shareholders make Additional Capital Contributions to the Company, the Company shall issue a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice written request (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing MemberCapital Call”) in writing to each of the total amount Shareholders for the making of Noncontributing Member Capital Contributions not made (the “such Additional Capital Shortfall”), and Contributions. The Capital Call shall specify a number of days within which each Contributing Member may make an additional Capital Contribution(i) the book value per Share, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If (ii) the total amount of Additional Capital Shortfall is not so contributedContributions requested from all Shareholders, (iii) the Management Committee may use any reasonable method total number of ACC Shares proposed to provide Members be issued to the opportunity to make additional Capital Contributions until Shareholders in connection therewith (which number shall be based on the book value per Share), (iv) the amount of the Additional Capital Shortfall Contribution requested from each Shareholder (with respect to each Shareholder, its “Proportionate Contribution Entitlement”), (v) the number of ACC Shares proposed to be issued to each Shareholder in connection therewith and (vi) whether the purpose of such Capital Call is to fund Necessary Expenses required by the Company during the Contribution Option Period and which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources, together with a brief description of any such Necessary Expenses and the other sources of funding considered but which were unavailable.
(c) The total amount of Additional Capital Contributions requested pursuant to a Capital Call and each Shareholder’s Proportionate Contribution Entitlement shall be calculated so as fully to ensure that, if each Shareholder made an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement, the ACC Shares issued would not result in any change to either Shareholder’s Pro Rata Percentage. Each Shareholder acknowledges that by declining to make an Additional Capital Contribution pursuant to a Capital Call in the full amount of such Shareholder’s Proportionate Contribution Entitlement, its Pro Rata Percentage may be diluted in accordance with the terms of this Section 4.2, unless otherwise agreed by the Parties.
(d) Within forty-five (45) days following receipt of a Capital Call (the “Contribution Option Period”), each Shareholder shall send a written notice to the Company either (i) declining to make an Additional Capital Contribution pursuant to the Capital Call or (ii) agreeing to make part or all of the Shareholder’s Proportionate Contribution Entitlement and stating what portion of the Shareholder’s Proportionate Contribution Entitlement it shall make. Any Shareholder that does not send a notice within the Contribution Option Period shall be deemed to have declined to make any Additional Capital Contribution pursuant to the Capital Call.
(e) Within five (5) Business Days following the expiration of the Contribution Option Period, the Company shall give written notice (a “Contribution Notice”) to each Shareholder specifying the amount of each Shareholder’s Proportionate Contribution 28 Entitlement and the amount of the Additional Capital Contribution that each Shareholder agreed to make. In the event that one Shareholder does not elect to make an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement (a “Non-Contributing Shareholder”) and the other Shareholder does elect to make an Additional Capital Contribution in the full amount of its Proportionate Contribution Entitlement (a “Contributing Shareholder”), then such Contributing Shareholder shall have the right to increase the amount of its Additional Capital Contribution to include all or any portion of the Non-Contributing Shareholder’s Proportionate Contribution Entitlement that the Non-Contributing Shareholder declined to make (such amount, a “Residual Contribution Amount”).
(f) Within ten (10) Business Days following receipt of a Contribution Notice showing a Residual Contribution Amount (the “Residual Exercise Period”), any Contributing Shareholder shall send a written notice to the Company either (i) declining to increase the amount of its Additional Capital Contribution to include any portion of the Residual Contribution Amount or (ii) exercising its right to increase its Additional Capital Contribution and stating the portion of the Residual Contribution Amount by which it desires to increase its Additional Capital Contribution. If such Shareholder does not send a notice within the Residual Exercise Period, it shall be deemed to have waived its right to increase the amount of its Additional Capital Contribution pursuant to Section 4.2(e).
(g) At the expiration of the Contribution Option Period or the Residual Exercise Period, as applicable, any Shareholder electing to make an Additional Capital Contribution pursuant to Section 4.2(d) and Section 4.2(f) (an “Electing Shareholder”) may make such Additional Capital Contribution and the Company may issue ACC Shares in connection therewith without any further obligation to any other Shareholder. Any Electing Shareholder shall make such Additional Capital Contribution within ten (10) Business Days following its receipt of a Contribution Notice or within ten (10) Business Days following the receipt of any and all required regulatory approvals, whichever is later (such date, the “ACC Deadline”), and the Company shall issue ACC Shares in connection therewith as promptly as practicable thereafter. In addition, the Company and any Electing Shareholder shall take all such other actions as may be reasonably necessary to complete such Additional Capital Contribution, including entering into such additional agreements as may be necessary or appropriate.
(h) With respect to any Capital Call to fund Necessary Expenses required by the Company during the Contribution Option Period and for which the Company reasonably anticipates are in excess of the funds reasonably available to the Company from other sources, any Shareholder may elect to contribute part or all of its and any other Shareholder’s Proportionate Contribution Entitlement of the Additional Capital Contributions in respect of the related request therefor (collectively, the “Emergency Advance”) and such Emergency Advance will be treated as a loan from such Shareholder to the Company, provided that a Shareholder must notify the other Shareholders in writing of the amount of such Emergency Advance at least five (5) Business Days prior to the contribution thereof (the “Emergency Advance Notice”). If a Shareholder has elected to contribute all or part of its or another Shareholder’s Proportionate Contribution Entitlement pursuant to this Section 4.2(h), upon contribution of the Proportionate Contribution Amounts by each Shareholder as an Additional Capital Contribution, the Company shall pay directly to the Shareholder making the Emergency Advance an amount equal to the Emergency Advance made by such Shareholder plus an additional amount of interest thereon 29 equal to nine percent (9%) per annum from the date of the Emergency Advance to the date of repayment of such Emergency Advance, and, provided, further, if the other Shareholders do not elect to contribute to the Company its pro rata share of the amount of the Emergency Advance (together with interest thereon as aforesaid), then the amount such Shareholder has contributed (including both its and any other Shareholders’ portion thereof), including interest thereon as possibleaforesaid, will be designated as an Additional Capital Contribution and the Company may issue ACC Shares in connection therewith without any further obligation to any other Shareholder.
Appears in 1 contract
Additional Capital Contributions. (a) From time to timeAfter the Initial Capital Contributions have been funded, the Management CommitteeManager or any Member, subject by written notice to approval by a Supermajority in Interest the other Members pursuant to Section 3.2(c), may call for additional contributions to the capital 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 for application in accordance with the Work Planterms and provisions of the Annual Plan or in order to address an existing Emergency Situation. On making The Members hereby agree that during the second and third years of operation of the Company they will consider approving the funding of all tenant improvement costs, leasing commissions and base building capital expenses by calling for additional capital contributions, as opposed to funding such a determinationcosts and expenses out of Cash Flow. Any such additional capital contributions made pursuant to the immediately preceding sentence shall be made on an as-needed basis, but not more often than once per calendar month during the second and third years of operation of the Company. All additional capital contributions which may be called in accordance with this Section 3.2(a) are hereinafter collectively referred to herein as “Additional Capital Contributions.”
(b) Any Additional Capital Contributions called pursuant to Section 3.2(a) shall be made by the Members in proportion to their respective Percentage Interests and will be credited to their respective Capital Accounts in accordance with the terms hereof.
(c) In order to call for any Additional Capital Contributions in accordance with Section 3.2(a), the Management Committee Member making the call shall give deliver to the other Member a written notice calling for the Additional Capital Contributions, indicating the respective amounts of the Member’s required Additional Capital Contributions, the basis for such call and the date (but in no event earlier than the tenth (10th) Business Day after receipt of such determination to all Members at least thirty (30notice) 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 amountsshall be required to make their Additional Capital Contributions, 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 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 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 (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 full proportionate share of the Company’s assets will be adjusted in a manner provided under aggregate Additional Capital Contributions 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 outstandingdate specified.
(bd) If a Member does not make an additional Capital Contribution with respect shall fail to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing contribute its full proportionate share of the total amount of Noncontributing Member Capital Contributions not made (the “any Additional Capital Shortfall”)Contributions, and shall specify a number of days within which each any Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing have the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblerights set forth in Sections 11.3 and 11.4.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Columbia Equity Trust, Inc.)
Additional Capital Contributions. Any additional contribution of capital to the Company (an “Additional Capital Contribution”) shall be made as follows:
(a) From time No Member shall be required or permitted to time, make any Additional Capital Contributions to the Management Committee, subject to approval Company unless such Additional Capital Contribution shall be authorized by a Supermajority in Interest majority-in-interest of the Members. If any such Additional Capital Contribution is so authorized, 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 determinationeach Member shall, the Management Committee shall give written notice of such determination to all Members at least within thirty (30) days before Business Days after the effective date on which of such additional Capital Contributions are needed. The notice shall set forth authorization, contribute the amount of additional the total requested Additional Capital Contributions multiplied by its respective percentage Membership Interest. All Additional Capital Contributions requested pursuant to this Section 5.2(a) shall be made by wire transfer of funds to the Company account designated by the Members. Each Additional Capital Contribution neededmade by any Member to the Company shall be set forth in the books and records of the Company and credited to such Member’s Capital Account
(b) Notwithstanding the foregoing Section 5.2(a), prior to the purpose for which it is neededcompletion of the Project and the issuance of a temporary certificate of occupancy to the Company in connection with each of the improvements constructed on the Concord Property pursuant to the Development Plan, if Concord determines, in its sole and reasonable judgment, that the date Company shall require additional capital in order to fund any development and/or construction cost associated with the development of the Concord Property pursuant to the Development Plan, then Concord shall be permitted to unilaterally request, without the consent of Empire, that an Additional Capital Contribution be made by which the Members may contribute and, within thirty (30) Business Days after such additional amounts, and a reasonably detailed assessment of why alternative financing, notably unsecured or secured debt financing, request 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 Planmade, each Member shall be given contribute the opportunity amount of the total requested Additional Capital Contributions multiplied by its respective percentage Membership Interest by wire transfer of funds to make such additional Capital Contribution in proportion the Company account designated by Concord; provided, that prior to such Member’s Percentage Interest. Upon payment of an additional calling for any Additional Capital Contribution pursuant to this Section 3.2(a5.2(b), Concord shall use its best efforts to obtain financing from a third-party lender on commercially reasonable terms (taking into account the interest rate, fees, and other lender requirements) to fund such development and/or construction costs associated with the development of the Concord Property pursuant to the Development Plan.
(c) Notwithstanding anything to the contrary contained in this Agreement, at the end of each calendar year, the Company shall issue additional Units cause Empire’s Capital Account to each contributing Membereither be (I) credited in the amount of the difference between (a) the Reimbursement Amount (or, with each new Unit being issued for its fair market valuein the case of a partial year, the applicable percentage of the Reimbursement Amount) and (b) the sum received by Empire pursuant to Sections 6.1(b) and 6.2(b) of this Agreement during such calendar year (such difference, the “Empire Reimbursement Contribution”), provided that such difference is a positive number, or (II) debited in the amount of the Empire Reimbursement Contribution, provided that such difference is a negative number. The fair market value Any amount so credited shall be treated as an Additional Capital Contribution made by Empire to the Company pursuant to the terms of an additional Unit issued this Agreement and any amount so debited shall reduce the aggregate amount of Additional Capital Contributions that are deemed to have been made by Empire to the Company. All amounts that shall be credited to Empire’s Capital Account pursuant to this Section 3.2(a5.2(c) shall be determined deemed to be an Additional Capital Contribution made by dividing (i) Empire to the Company Valuation by (ii) that shall earn 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 outstandingEmpire Cash Equity Preferred Return.
(d) Notwithstanding anything to the contrary contained in this Agreement, at the end of each calendar year, the Company shall cause Concord’s Capital Account to either be (I) credited in the amount of the difference between (a) the Reimbursement Amount (or, in the case of a partial year, the applicable percentage of the Reimbursement Amount) and (b) If a Member does not make an additional Capital Contribution with respect the sum received by Concord pursuant to which Sections 6.1(c) and 6.2(c) of this Agreement during such Member has an option under Section 3.2(a) at calendar year (such difference, the time specified in the notice (a “Noncontributing MemberConcord Reimbursement Contribution”), provided that such difference is a positive number, or (II) debited in the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing amount of the total Concord Reimbursement Contribution, provided that such difference is a negative number. Any amount of Noncontributing Member Capital Contributions not made (the “so credited shall be treated as an Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio Contribution made by Concord to the Company pursuant to the terms of this Agreement and any amount so debited shall reduce the aggregate amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears Contributions that are deemed to have been made by Concord to the combined Percentage Interests of all of the Contributing MembersCompany. If the total amount of All amounts that shall be credited to Concord’s Capital Account pursuant to this Section 5.2(d) shall be deemed to be an Additional Capital Shortfall is not so contributed, Contribution made by Concord to the Management Committee may use any reasonable method to provide Members Company that shall earn the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleConcord Cash Equity Preferred Return.
Appears in 1 contract
Sources: Agreement to Form Limited Liability Company and Contribution Agreement (Empire Resorts 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 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 certain distribution priorities specified in Appendix 1 attached heretoC, and Capital Accounts will reflect Section C.8. until 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such funding Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing recouped such Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “'s entire Excess Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing including, without limitation, any advance for the same ratio non-funding Member, together with any Cumulative Preferred Return. Such right of the other Member(s) to the amount fund a non-funding Member's applicable share of any Additional Capital Shortfall as Contributions shall be in addition to, and not in lieu of, such Member's rights and remedies to enforce the Contributing specific terms and obligations of this Agreement against such non-funding Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleeither at law or in equity.
Appears in 1 contract
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 any Capital Contribution in addition to those contemplated by Section 8.1. In the event the Members are required to make additional Capital Contributions as authorized (i) by the decision of the Management Committee to construct an additional Capital Contribution. Howeverportion of the Fiber Optic Network or a new Spur, except as contemplated or (ii) by an applicable Work Planthe Member's unanimous vote or Consent, each Member the Members shall be given the opportunity to make participate in such additional Capital Contribution Contributions on a pro rata basis in proportion to such Member’s Percentage Interestaccordance with their Economic Interests. Upon payment of an No additional Capital Contribution pursuant to Contributions may be made other than in cash without the approval of the Members. In the event one Member makes additional Capital Contributions in accordance with this Section 3.2(a)Agreement and with the Consent of the other Member, the Company shall issue additional Units to each non-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 Economic Interest shall be determined by dividing (i) diluted. Dilution shall be based upon the Company Valuation by (ii) Capital Account balance at the number of Units outstanding immediately prior to such time additional Capital ContributionContributions are made. Immediately before issuing Units, the Gross Asset Value of the Company’s assets will A Member's Economic Interest shall be adjusted in a manner provided under proportionally to the definition of Gross Asset Value in Appendix 1 attached hereto, and relative positive 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 at the total number time any additional Capital Contributions are made, but excluding any portion of Units held by each Member after the issuance of the additional Units and the total number of Units then outstandinga Capital Account attributable to a Division.
(b) If a Member does not make an additional Capital Contribution with respect Anything to which such Member has an option under the contrary contained in Section 3.2(a) at the time specified 8.2 notwithstanding, in the notice (a “Noncontributing Member”), event that the Manager or the Management Committee shallreasonably determines that the Company's cash reserves and reasonably anticipated revenues are less than is needed to satisfy its existing liabilities or its budgeted needs for capital expenditures and working capital during the succeeding twelve (12) months, within five (5) days after said failure. notify each other either Member (each, a “Contributing Member”) in writing of shall be empowered to seek approval from the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an Members for additional Capital ContributionContributions, which shall not be less than an amount bearing unreasonably withheld, sufficient in the same ratio reasonable judgment of the Manager or the Management Committee to fund the anticipated shortfall.
(c) Energy East may elect to participate in the Cornell Project and have it become a part of the Fiber Optic Network and the business and assets of the Company by making a Capital Contribution equal to fifty percent (50%) of the capital costs incurred by Telergy to construct and install the Cornell Project. Energy East may make the election by giving written notice to Telergy at any time within the one (1) year following the Effective Date. Within fifteen (15) days of the notice from Energy East, Telergy shall notify Energy East in writing of the amount of Additional the Capital Shortfall as Contribution to be made, and within the Contributing Member’s Percentage Interest bears to the combined Percentage Interests next fifteen (15) days Energy East shall make its Capital Contribution of all cash and simultaneously therewith, Telergy shall make a Capital Contribution of the Contributing Membersbusiness and assets of the Cornell Project. If The cash contributed by Energy East shall be immediately distributed to Telergy. The Cornell Project shall be accounted for as part of the total amount business and assets of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Company following these Capital Contributions until by the Additional Members.
(d) A Participating Member shall make the Capital Shortfall is as fully contributed as possibleContributions necessary to fund the capital costs for the Segregated Network of a Division.
Appears in 1 contract
Additional Capital Contributions. (a) From The Members recognize that the Company may require capital 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 that previously contributed, in order to accomplish the Initial Members’ prior Capital Contributions are needed to enable purpose and business for which it is formed. Upon the Company to conduct its business in accordance with the Work Plan. On making such a determination, from time to time, by the Management Committee shall give written notice of such determination to all Members at least thirty (30) days before the date on which such Representative that additional Capital Contributions are needednecessary for the Company, the Representative will, by written notice, call for any such additional contributions to be made by the Members to the capital of the Company (or, at the Representative’s discretion, solely to Inergy Storage with respect to capital contributions relating to New York state, county or local (including schools) real estate taxes). The notice shall set forth Although proportional Capital Contributions are allowed in the amount discretion of the Representative, they are not required. No Member is obligated to make any additional Capital Contribution neededContributions to the Company and, 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 Planaccordingly, no Member shall will be required liable for damage to the Company or any other Member as a result of the failure of such Member to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity to make any such additional Capital Contribution Contributions. The remedies set forth in proportion to this Section 3.2 are the sole remedies for any such Member’s Percentage Interestfailure. Upon payment of an additional Each 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 by a Member pursuant to this Section 3.2(a) shall will be determined credited to such Member’s Capital Account as of the date of payment to the Company and the Percentage Interests of each Member will be adjusted in accordance with the provisions of Section 3.2(b).
(b) Whenever an additional capital contribution is made by dividing a Member under Section 3.2(a), the Members will negotiate in good faith concerning the appropriate adjustments to be made to their respective Percentage Interests. If, within 45 days, the Members have not agreed upon such adjustments, the Representative will select an investment banker or other qualified consultant to determine the adjustments to be made. The investment banker or consultant will determine the adjusted Percentage Interests by comparing (i) the Fair Value of the Company Valuation by without the Capital Contributions at issue, and the then relative pre-adjustment Percentage Interests of the Members with (ii) the number of Units outstanding immediately prior to such additional Capital Contribution. Immediately before issuing Units, the Gross Asset Fair Value of the Company’s assets will be adjusted in a manner provided under Company with the definition of Gross Asset Value in Appendix 1 attached heretoCapital Contributions at issue, and Capital Accounts the Member or Members paying the same to the Company. The Representative will cause this Agreement to be amended to reflect such new Gross Asset Value. Following the issuance of additional Units, if necessary, the Management Committee shall re-compute any adjustment in 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 outstandingin accordance with this Section 3.2(b).
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Shortfall”), and shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.
Appears in 1 contract
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 needed. The notice shall set forth the amount of additional required) to General Partner and (iii) General Partner has not called for such 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall, Contributions within five (5) days after said failurefollowing General Partner’s receipt of such notice. notify each Each call for Additional Capital Contributions pursuant to this Section 4.2 shall be an “Additional Capital Call” and shall be made by delivery of notice therefor to all other Member Partners (each, a “Contributing MemberCapital 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 writing 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 amount of the total amount Required Capital and each Partner’s pro rata share (based upon its Percentage Interest) of Noncontributing Member the Required Capital Contributions not made (with respect to each Partner, its “Pro Rata Share”). Each Partner shall contribute its Pro Rata Share in cash by wire transfer of funds to the Partnership account(s) designated in the Capital Demand Notice on or prior to the date that is fifteen (15) Business Days after receipt of the Capital Demand Notice or prior to such later date as is set forth in the Capital Demand 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”). Each period beginning when the Partners receive a Capital Demand Notice and ending on the date of the Contribution Deadline shall be a “Contribution Period”.
(b) During any Contribution Period, the Partner that delivered the Capital Demand Notice initiating such Contribution Period may (but shall not be required to) unilaterally (and/or together with its Affiliated Partners) make any or all of the applicable Additional Capital ShortfallContributions as it determines, in accordance with the Performance Standard, that the Partnership must receive prior to the applicable Contribution Deadline in order to avoid a default by, additional costs to or other material adverse effects on the Partnership, any Subsidiary or any Property. Each Additional Capital Contribution pursuant to the foregoing sentence shall be an “Advance Contribution” and each Partner that made such Advance Contribution shall be an “Advance Contributor”. With respect to any Advance Contribution, the following provisions shall apply:
(1) if, as of the applicable Contribution Deadline, all Partners have made their Additional Capital Contributions, the Partnership shall repay to each Advance Contributor, without interest, from the first available source of funds therefor (including the Additional Capital Contributions), an amount equal to (x) the amount of such Partner’s Advance Contribution less (y) such Partner’s Pro Rata Share; or
(2) if, as of the applicable Shortfall Deadline, any Partner that is not an Advance Contributor has failed to make its Additional Capital Contribution, then each Advance Contributor may elect by notice to the other Partners given within five (5) Business Days following the Shortfall Deadline to (A) treat the portion of the Advance Contribution equal to such Advance Contributor’s Pro Rata Share as such Advance Contributor’s Capital Contribution and treat the remainder of such Advance Contribution (less any amount reimbursed (or available to be reimbursed) as a Shortfall Loan made as of the Shortfall Deadline by the Advance Contributor to each Partner that failed to make its Additional Capital Contribution, in accordance with Section 4.2(d), or (B) be refunded the Advance Contribution (x) in full (or, to the extent then utilized, repaid from the first available source of funds therefor) or (y) to the extent in excess of such Advance Contributor’s Pro Rata Share, and to treat such Advance Contributor’s Pro Rata Share as a Preferred Contribution with respect to the Portfolio Property or Approved Property, as applicable, relating to the Advance Contribution.
(c) In the event that a Partner fails to contribute its Pro Rata Share on or before the Contribution Deadline, then: (i) General Partner shall promptly provide notice to all other Partners of such failure (provided, however, that General Partner shall not be required to provide such notice to any Partners that are Affiliates of General Partner and General Partner and such Affiliates shall be deemed to have received such notice as of the Contribution Deadline); and (ii) if such Partner’s failure (A) continues for a period of five (5) Business Days after such Partner receives (or is deemed to have received) notice thereof (the “Shortfall Deadline”), then such Partner shall be a “Non-Contributing Partner”, the Partners that made such Additional Capital Contributions shall be the “Contributing Partners” and the amount of the failed contribution shall be the “Shortfall Amount”, or (B) is cured prior to the Shortfall Deadline, such Partner shall be deemed to have made the relevant Additional Capital Contribution as of the applicable Contribution Deadline.
(d) A Contributing Partner may (but shall not be required to) as its sole remedy elect by notice to the other Partners given within five (5) Business Days following the Shortfall Deadline to: (1) advance to the Partnership on behalf of, and as a loan to, the Non-Contributing Partner, an amount equal to the Shortfall Amount (each such loan, a “Shortfall Loan”); (2) receive a refund of its Additional Capital Contribution; or (3) contribute to the Partnership the Shortfall Amount and treat such Shortfall Amount and its Additional Capital Contribution as a priority preferred Capital Contribution with respect to the Portfolio Property or applicable Approved Property (or, with respect Partnership Expenses, allocated among the Portfolio Properties and Approved Properties, as determined by the General Partner in its reasonable discretion) (a “Preferred Contribution”). If any Partner in a Partner Group elects to make a Shortfall Loan, then all Partners in such Partner Group shall be deemed to have elected to make a Shortfall Loan. The aggregate amount of all Shortfall Loans made by all Contributing Partners must be equal to the aggregate amount of all Shortfall Amounts, in each case with respect to the applicable Additional Capital Call. If there is more than one Contributing Partner that elects to make a Shortfall Loan, then each such Contributing Partner’s Shortfall Loan shall be made in proportion to such Contributing Partners’ Percentage Interests (or in such other proportion as they may Approve in their respective sole discretion). If the Contributing Partner(s) elect in accordance with the foregoing to make a Shortfall Loan, such Shortfall Loan shall be advanced to the Partnership within fifteen (15) Business Days following the Contribution Deadline. The failure to timely make such election or to timely make such Shortfall Loan shall be deemed to be an election under clause (2). Upon a Contributing Partner’s election (or deemed election) under clause (2), General Partner shall promptly refund each Contributing Partner’s Additional Capital Contribution. Notwithstanding anything to the contrary, if a Contributing Partner and Non-Contributing Partner with respect to an Additional Capital Call belong to the same Partner Group and any Contributing Partner in the other Partner Group makes a Shortfall Loan, then such Contributing Partner that is an Affiliate of the Non-Contributing Partner shall not be permitted to exercise (or be deemed to exercise) any of the remedies set forth above, including the right to receive a refund of its Additional Capital Contribution under clause (2).
(e) In the event of a Shortfall Loan, the Capital Account of the Non-Contributing Partner shall be credited with the amount of the Shortfall Loan made by the Contributing Partner(s) and the aggregate amount of the Shortfall Loan made by the Contributing Partner(s) shall be treated as a loan to the Non-Contributing Partner and shall constitute a debt owed by the Non-Contributing Partner to the Contributing Partner(s). Any Shortfall Loan shall bear interest at the rate of fifteen percent (15%) per annum, compounded quarterly, but in no event in excess of the highest rate permitted by applicable laws (the “Shortfall Loan Rate”), and shall specify be payable by the Non-Contributing Partner as provided in Section 5.2. Interest on a number Shortfall Loan, to the extent unpaid, shall accrue and compound on a quarterly basis. A Shortfall Loan shall be prepayable, in whole or in part, at any time or from time to time, together with all interest accrued thereon, without penalty. Any such Shortfall Loans shall be with full recourse to the Non-Contributing Partner and shall be secured by the Non-Contributing Partner’s Interest, including such Non-Contributing Partner’s right to Distributions. For the avoidance of days within doubt, “full recourse” to a Partner shall mean recourse solely to such Partner and not to any of its Affiliates. In furtherance thereof, upon the making of such Shortfall Loan, the Non-Contributing Partner hereby pledges, assigns and grants a security interest in its Interest to the Contributing Partner(s) and agrees to execute such documents and statements reasonably requested by the Contributing Partner(s) to further evidence and secure such security interest; provided however, that such security interest may be foreclosed upon only in the event that during the period in which each a Shortfall Loan is outstanding, Distributions are paid to the Non-Contributing Member may make an additional Capital ContributionPartner prior to payment in full of all amounts (including interest) owed under the Shortfall Loan. Payments on a Shortfall Loan shall be applied first to payment of any Shortfall Loan Return with respect to such Shortfall Loan and then to principal due under such Shortfall Loan until all amounts due thereunder are paid in full. At the request of the Contributing Partner, which the borrower under a Shortfall Loan shall not be less than an amount bearing the same ratio to execute and deliver a negotiable promissory note in the amount of Additional Capital such Shortfall as Loan payable to the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of Partner in a form reasonably required by the Contributing Members. If the total amount of Additional Capital Shortfall Partner no later than fifteen (15) days after such request is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possiblemade.
Appears in 1 contract
Sources: Limited Partnership Agreement (LXP Industrial Trust)
Additional Capital Contributions. (a) From time to time, the Management Committee, subject to approval by a Supermajority in Interest If any of the Members, may Managing Members shall reasonably determine that funds are required for a Necessary Expenditure, or in the event of a Preferential Distribution Non-Payment (as defined in the Series A Terms), such Managing Member shall have the right to make a Mandatory Capital Contributions in addition Call describing the amount and nature of the Necessary Expenditure or the aggregate amount of any payment default pursuant to the Initial Members’ prior Capital Contributions are needed to enable Series A Terms, in which event each of the Company to conduct its business in accordance with the Work Plan. On making such a determinationManaging Members shall, the Management Committee shall give written notice within twenty (20) days after receipt of such determination Mandatory Capital Call, fund a portion of the capital contribution required by such Mandatory Capital Call (which portion shall be equal to all Members at least thirty (30) days before the date on which such additional Capital Contributions are needed. The notice shall set forth Member's Funding Percentage multiplied by the amount of additional such Mandatory Capital Contribution neededCall). Notwithstanding anything to the contrary herein, except for the purpose for which it is needed, the date by which the Members may contribute such additional amounts, and a reasonably detailed assessment payment of why alternative financing, notably unsecured or secured debt financing, is not, any Preferential Distribution Non-Payment (as defined in the opinion of the Management Committee, appropriate in lieu of a Capital Contribution. Except for services as contemplated by an applicable Work PlanSeries A Terms), no Managing Member shall be required to make an additional contribute or lend any funds to the Company (and no Mandatory Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall Call for a Necessary Expenditure may be given the opportunity to make such additional Capital Contribution in proportion issued 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 5.2 or otherwise (i) if such Member has fully funded its Capital Commitment (whether or not the Company Valuation by other Members have fully funded their Capital Commitments), (ii) the number of Units outstanding immediately prior in response to such additional a Capital Contribution. Immediately before issuing UnitsCall made at any time after December 31, the Gross Asset Value 2000 (irrespective of the Company’s assets will be adjusted in a manner provided under the definition amounts previously contributed) or (iii) at any time after an initial public offering 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 Shares by each Member after the issuance of the additional Units and the total number of Units then outstandingWCPT.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”), the Management Committee shall have authorized a Capital Call, the Manager shall make such Capital Call describing in brief detail the use of proceeds of such Capital Call, in which event each of the Managing Members shall, within five (520) days after said failure. notify each other Member (eachreceipt of such Capital Call, fund a “Contributing Member”) in writing portion of the total amount of Noncontributing Member capital contribution required by such Capital Contributions not made Call (the “Additional Capital Shortfall”), and which portion shall specify a number of days within which each Contributing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio equal to such Member's Funding Percentage multiplied by the amount of Additional such Capital Shortfall as Call).
(c) Following receipt of a Capital Call in compliance with the Contributing Member’s Percentage Interest bears requirements of this Section 5.2, each of the Managing Members shall contribute to the combined Percentage Interests Company the amount applicable to such Member as set forth in the Capital Call delivered pursuant to this Section 5.2 on the due date specified in such notice.
(d) Upon any conversion by a Saracen Member of all any Series A Preferred Membership Units into Membership Units, such Saracen Member shall have the right to contribute up to $7,500.00 to the Company as an additional capital contribution, provided, however, that such capital contribution shall be in addition to and shall not reduce the conversion price payable in connection with such conversion. In exchange for such capital contribution, Membership Units shall be issued based upon the Deemed Value Per Membership Unit on the date of such capital contribution. Notwithstanding the Contributing Members. If foregoing, in no event shall (i) the total aggregate amount of Additional capital contributions made by all Saracen Members pursuant to this Section 5.2(d) exceed $50,000.00, and (ii) Membership Units be issued for more than $50,000.00 of capital contributions pursuant to this Section 5.2(d).
(e) Notwithstanding anything contained in this Section 5.2 to the contrary, Holding Co. will fund its Capital Shortfall is not so contributedCommitment in the manner and amount described in the definition of "Capital Commitment" contained herein in connection with any capital contribution required for the potential acquisition of properties commonly known, the Management Committee may use any reasonable method to provide Members the opportunity to make additional respectively, as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, after which Holding Co. shall have no further Capital Contributions until the Additional Capital Shortfall is as fully contributed as possibleCommitment.
Appears in 1 contract
Additional Capital Contributions. (a) From Additional Capital Contributions may be called for from the Members by the Manager from time to time, time as and to the Management Committee, subject to approval extent capital is necessary in connection with the Property. Except as otherwise agreed 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 be in an amount for each Member equal to the product of the amount of additional the aggregate Capital Contribution needed, the purpose called for which it is needed, the date multiplied 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 their respective Percentage Interest. Upon payment of an Such additional Capital Contribution pursuant Contributions shall be payable by the Members 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 upon the earlier of an additional Unit issued pursuant to this Section 3.2(a) shall be determined by dividing (i) twenty (20) days after written request from the Company Valuation by Company, or (ii) the number of Units outstanding immediately prior to such additional date when the Capital Contribution. Immediately before issuing UnitsContribution is required, the Gross Asset Value of as set forth in a written request from 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.
(b) If a Member does not make an additional Capital Contribution with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Defaulting Member”) fails to make a Capital Contribution that is required as provided in Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), the Management Committee shallother Members, within five (5) days after said failure. notify each provided that it has made the Capital Contribution required to be made by it, in addition to any other Member (eachremedies it may have hereunder or at law, a “Contributing Member”) but subject in writing all events to any restrictions contained in the Loan Documents, shall have one or more of the total amount following remedies:
(1) [Intentionally Omitted];
(2) subject to any applicable thin capitalization limitations on indebtedness of Noncontributing Member the Company, to treat its portion of such Capital Contributions not made Contribution as a loan to the Company (the “Additional Capital Shortfall”), and shall specify rather than a number of days within which each Contributing Member may make an additional Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member(s) and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. If more than one Member has loans outstanding to the Company under this provision, such loans shall be payable to each such Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be less than an amount bearing treated as a Capital Contribution made by the same ratio to Defaulting Member. For purposes of this Agreement, the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all “Default Loan Rate” means a twenty percent (20%) per annum interest rate, but in no event in excess of the Contributing Members. If the total amount of Additional Capital Shortfall is not so contributed, the Management Committee may use any reasonable method to provide Members the opportunity to make additional Capital Contributions until the Additional Capital Shortfall is as fully contributed as possible.highest rate permitted by applicable laws;
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. (a) From time to timeExcept as otherwise provided in Sections 2.2(b), the Management Committee2.2(c), 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 (3010.8(b) 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 Plan12.9, no Member shall will be required to make an additional Capital Contribution. However, except as contemplated by an applicable Work Plan, each Member shall be given the opportunity Contributions (“Additional Capital Contributions”) 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.
(b) If a Member does not make an additional Capital Contribution with respect the cash required by the Company to which such Member has an option under Section 3.2(a) at the time specified satisfy operating and maintenance expenses or to engage in the notice extension, improvement, or expansion of the Anadarko Contributed Assets exceeds its then available cash reserves (a “Noncontributing Member”), the Management Committee shall, within five (5) days after said failure. notify each other Member (each, a “Contributing Member”) in writing of the total amount of Noncontributing Member Capital Contributions not made (the “Additional Capital Cash Shortfall”), and shall specify a number of days within which each Contributing then the Managing Member may make an additional Capital Contribution, which shall not be less than an amount bearing the same ratio cash calls to the amount of Additional Capital Shortfall as the Contributing Member’s Percentage Interest bears to the combined Percentage Interests of all of the Contributing Memberscover such Cash Shortfall. If the total amount Managing Member makes such cash calls, then (i) if the Class A Member so elects (within 30 days after notice of such cash call), the Class A Member shall make Additional Capital Shortfall is not so contributedContributions of cash in an amount equal to five percent (5%) of such Cash Shortfall, and (ii) the Management Committee may use any reasonable method to provide Members the opportunity to Managing Member shall make additional Additional Capital Contributions until of cash equal to the excess of the Cash Shortfall over amounts elected to be contributed by the Class A Member under clause (i) immediately preceding.
(c) The Managing Member, or the Withdrawing Class B Member, shall make any Additional Capital Shortfall is Contributions required to be made pursuant to Sections 9.6(c) and 11.4(b) of the Master Formation Agreement. The Class A Member, or a Withdrawing Class A Members, shall make any Additional Capital Contributions required to be made pursuant to Section 9.6(c) of the Master Formation Agreement. Any Additional Contribution made by a Withdrawing Class A Member pursuant to this Section 2.2(c) shall be treated for federal income tax purposes as fully contributed having been made by the Class A Member and any Interest issued by the Company as possiblea result of such Additional Contribution shall be issued to the Class A Member. Any Additional Contribution made by the Withdrawing Class B Member pursuant to this Section 2.2(c) shall be treated for federal income tax purposes as having been made by the Managing Member and any Interest issued by the Company as a result of such Additional Contribution shall be issued to the Managing Member.
(d) The Members may make Additional Capital Contributions in addition to those required to be made in Sections 2.2(b), 2.2(c), 10.8(b), and 12.9 only with consent of all Members, in which event the Company shall issue to the contributing Member additional Interests with such terms as may be unanimously agreed to by the Members.
Appears in 1 contract
Additional Capital Contributions. (a) From If at any time, and from time to time, after the Management Committee, subject to approval by a Supermajority in Interest date on which each of the Members, may determine that Members has made its Capital Contributions in addition up to the Initial Members’ prior amount of such Member’s Capital Contributions are needed to enable the Company to conduct its business Commitment in accordance with Section 3.1 hereof, additional cash in excess of Net Cash Flow and other funds available to the Work Plan. On making Venture is required by the Venture (i) in order to pay any Organizational Expenses or Operating Expenses, or (ii) in respect of the Project, including in order to pay the costs of maintenance, repairs, capital improvements, replacements or other expenses necessary to comply with lease or other contractual obligations of the Subsidiary REIT (or any subsidiary thereof that owns the Project) and to keep the Project in good condition and repair, then the Manager may make a Capital Call for additional capital from the Members in proportion to their respective Percentage Interests in an amount believed in good faith by the Manager to be the amount needed to fund the cash needs of the Venture and in such a determination, event shall provide the Management Committee shall give written Members with not less than ten (10) Business Days’ advance notice of such determination to all Members at least thirty (30) days before the date on which such contributions are required to be made. Subject to Section 3.3(b), the Members shall make their respective 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 as and when requested in 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 outstandingnotice.
(b) If a In the event that either Member does not declines to make an its additional Capital Contribution in accordance with respect to which such Member has an option under Section 3.2(a) at the time specified in the notice (a “Noncontributing Member”3.3(a), the Management Committee shallManager shall be obligated to contribute, within five (5) days after said failure. notify each other Member (eachor to cause one or more of its Affiliates to contribute, a “Contributing Member”) in writing of the total an amount of Noncontributing Member Capital Contributions not made (the “Additional Substitute Capital”) equal to any declining Member’s Capital Shortfall”Contribution specified in such Capital Call. Unless otherwise agreed by the Members, such Persons shall contribute the Substitute Capital to the Subsidiary REIT. In consideration of the contribution of the Substitute Capital, the Subsidiary REIT shall issue Shares to the Person(s) contributing the Substitute Capital based on the value of the outstanding Shares of the Subsidiary REIT determined in accordance with this Section 3.3(b), and shall specify a . The number of days within which each Contributing Member may make an additional Shares to be issued by the Subsidiary REIT in consideration of the contribution of Substitute Capital Contribution, which shall not be less than an amount bearing the same ratio to equal the amount of Additional such Substitute Capital Shortfall as divided by the Contributing Membervalue of a Share, which value shall be determined by the net asset value of the Subsidiary REIT, based upon the valuation of the Project specified in this Section 3.3(b) and the Subsidiary REIT’s Percentage Interest bears interest in the Project and taking into account the fair value of any other assets and the liabilities of the Subsidiary REIT and the number of Shares outstanding immediately prior to the combined Percentage Interests of all contribution of the Contributing MembersSubstitute Capital. If The value of the total amount Project shall be determined based on a valuation (or an update of Additional the most recent valuation) that has been prepared within the three months preceding the contribution of the Substitute Capital Shortfall to the Subsidiary REIT and made by the independent third‑party appraiser that prepared the most recent valuation of the Project for the Venture or another real estate appraisal provider listed on Annex A to the Valuation Policy, or, if there is not so contributedno previous valuation, upon a valuation that has been prepared by an independent third‑party appraiser listed on Annex A to the Management Committee may use Valuation Policy; provided that, if there has been any event that in the reasonable method to provide Members judgment of the opportunity to make additional Capital Contributions until Manager has had a material effect (whether beneficial or adverse) on the Additional Capital Shortfall is as fully contributed as possibleProject since the date of such valuation, a new valuation or an update of the most recent valuation shall be obtained for the valuation of the Project.
Appears in 1 contract
Sources: Limited Partnership Agreement (Behringer Harvard Multifamily Reit I Inc)