Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution. 7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate. 7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows: (a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto. 7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 15 contracts
Sources: Operating Agreement (Seidman Lawrence B), Operating Agreement (Seidman Lawrence B), Operating Agreement (Seidman Lawrence B)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing MemberManager, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (iI) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (iI) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (iI) (Cc) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 7 contracts
Sources: Operating Agreement (Seidman Lawrence B), Operating Agreement (Seidman Lawrence B), Operating Agreement (Seidman Lawrence B)
Additional Capital Contributions. 7.1 No Member (a) Upon the consent of a Majority of Members, the Manager shall be obligated have the right to make require additional capital contributions (“Capital Calls”) from the Members to be paid on a pro rata basis as to all Members in accordance with the Company. If the Managing Memberpercentages set forth on Schedule A.
(b) The Manager may obtain Company loans to cover any Company required Additional Capital Contributions, with the concurrence consent of the Members holding a majority in interest of the Membership Interest in the Company.
(c) In the event that a Member fails to, shall determine there or refuses to contribute towards a Capital Call (the “Defaulting Member”), then either:
(i) The remaining Members may elect to purchase the Membership Interest from the Defaulting Member, at a 15% discount to the Defaulting Member’s Initial Capital Contribution; or
(ii) The remaining Members may elect to contribute the necessary funds (the “Lending Members”) on behalf of the Defaulting Member which shall be considered a Required Amount for any Company purposeloan to the Defaulting Member, including, without limitation, those purposes set forth to be secured by its Membership Interest in Article 5, then within fifteen the Company.
(15A) days of notice of such requirement, each Member may, but shall not be obligated to, contribute Any loan given to the Company his Additional Contribution.
7.2 If a by the Lending Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest on behalf of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare the Company terminated as shall accrue interest at a result rate of the Noncontributing Member's default300 basis points above LIBOR per annum. In the event that more than one Contributing Member desires to make an Additional Contribution, of a Distribution by the Manager under Article 5 herein or is permitted to make under a Default Loan, on account dissolution of the Noncontributing Company under Article 10 herein, the Manager shall use the funds attributable to the Defaulting Member, each such Contributing to first pay off any loans to the Defaulting Member by the Lending Member.
(B) In furtherance of any loan to any Defaulting Member by the Lending Members in accordance with this Section, the Members hereby expressly agree to execute any and all loan documents which the Company’s attorneys deem necessary, including but not limited to; a Note, Guaranty, Loan Agreement, and Pledge Agreement. Furthermore, the Defaulting Member shall be permitted responsible to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to pay for all legal fees that the Company pursuant to Section 7.2, the Interest shall incur in furtherance of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoloan.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 5 contracts
Sources: Operating Agreement, Operating Agreement (Harrison Vickers & Waterman Inc), Operating Agreement (Attitude Drinks Inc.)
Additional Capital Contributions. 7.1 (a) Additional capital contributions shall be made by the Members as described below in order to satisfy any Capital Shortfall declared by the Management Committee as a Major Decision under SECTION 3.01(c). Such capital contributions will not be made until other existing funds of the Company have been utilized, and the Members shall use their best efforts to cause the Company to borrow from third parties any funds required for satisfaction of such Capital Shortfall before any demand is made on the Members for capital contributions for the same. No Member shall be obligated have any obligation to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant except as expressly required by the provisions of this Agreement.
(b) If any additional capital contributions are required to Section 7.2, satisfy any Capital Shortfall declared by the Interest of Management Committee as a Major Decision under SECTION 3.01(c) (it being contemplated that the Noncontributing Member Project Reserve permitted by the Aetna Modification Documents and the Contributing Additional Loan Advances which Aetna has agreed to fund to the Partnership under the Modification Documents will be used first to fund Company requirements as described in SECTION 2.07(a) hereof before the Members shall be adjusted obligated to make a contribution with respect to the same), then the same shall be contributed by the Members in proportion to their respective Percentage Interests at the time of such Capital Shortfall.
(c) In the event any Member shall fail to make any required capital contribution required by SECTION 2.05(b) above within ten days (10) after written demand for such payment by any other Member, (i) unless the Members other than the non-contributing Member elect, either pursuant to clause (ii) below or pursuant to SECTION 2.05(d) below, to make the entire contribution required to be made by the non-contributing Member, each Member that has made the additional capital contribution required to be made by it pursuant to SECTION 2.05(b) above may withdraw such capital contribution from the Company and may retain such amount until the non- contributing Member shall have made the additional capital contribution required to be made by it pursuant to SECTION 2.05(b) above, or (ii) the capital contribution required to be made by the non-contributing Member may be made by the other Members, in proportion to their respective Percentage Interests or as followsthey may otherwise agree, in which event such unpaid capital contribution shall constitute a debt owed by the non-contributing Member to the contributing Members, which shall bear interest at the prime rate from time to time announced by W▇▇▇▇ Fargo Bank, N.A., plus 5% per annum (but not to exceed the maximum rate permitted by law), until paid and shall be payable (with interest as aforesaid) 120 days after demand by the contributing Members. In addition, and not in limitation of, the other rights and remedies of the contributing Members, any distributions otherwise to be made by the Company to a non-contributing Member shall instead be made to the contributing Members, to be applied against such debt, and until such amounts, including accrued interest, are paid in full, no further distributions shall be made to any non-contributing Member by the Company and such non-contributing Member shall cease to have any vote on the Management Committee. Such debt, with interest as aforesaid, shall be with recourse as to the non-contributing Member, and shall be secured by a security agreement being executed contemporaneously herewith by such Member encumbering such Member's Company Interest. Any capital contribution so contributed by one Member on behalf of another Member shall, for purposes of SECTION 2.05(a) above, be deemed made by the Member on behalf of which such contribution was made.
(d) In the event any Member shall fail to make any capital contribution required by SECTION 2.05(b) above and the other Members do not elect to make such capital contribution in its entirety pursuant to SECTION 2.05(c) above within 45 days after written demand for payment of the capital contribution given to the defaulting Member by any other Member (which may be the same written demand as that given under SECTION 2.05(c) above), then (unless the interest of the non-contributing Member in the Company is acquired pursuant to SECTION 3.06(c) hereof as a result thereof) the remaining Members may make such additional capital contributions in cash in proportion to their respective Percentage Interests, or as they may otherwise agree, in which event the respective Percentage Interests of the Members shall be:
(ai) in the Noncontributing case of a Member making such additional capital contributions pursuant hereto, the Percentage Interest of such contributing Member shall be increased by a percentage (herein called the "PERCENTAGE ADJUSTMENT") determined by (x) dividing the amount of the required capital contribution made by such contributing Member by the "Estimated Value" of the defaulting Member's Interest, and (y) multiplying the result by such defaulting Member's Percentage Interest before such adjustment. For this purpose, "Estimated Value" shall be equal to 80% of the total proceeds such defaulting Member would receive upon a liquidation of the Company at its "Net Fair Market Value" and a distribution to the Members in accordance with SECTIONS 3.06(d) and 2.06(c) hereof. Except as otherwise provided in this Agreement, such "Net Fair Market Value" of the Company shall be determined in accordance with SECTION 3.03(e) hereof;
(ii) in the case of a defaulting Member, its Percentage Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal the total Percentage Adjustment increases pursuant to the percentage equivalent of the quotient of (i) above.
(e) The Percentage Adjustments shall be adjusted to the Additional Contribution nearest one hundredth of 1%. Adjustment shall be made in the respective Percentage Interests on each occasion when an additional aggregate capital contribution of at least $500,000 is made pursuant to SECTION 2.05(b), taking into consideration for this purpose on a cumulative basis any such capital contributions not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing previously included in making any such adjustment. Nothing herein shall obligate a Member to make an Additional Contribution, (Bany additional capital contribution required by SECTION 2.05(b) 300% upon in the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount event one or more of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member fails to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause such contributions hereunder.
(if) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of To illustrate the operation of this Section 7.3 with respect SECTION 2.05, assume, for purposes of this example only, that the Percentage Interests of Carlyle 14, Carlyle 15 and M▇▇▇▇▇▇ Partners are 17.495%, 32.495% and 50.01%, respectively, at the time an additional capital contribution of $10,000,000 is required pursuant to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoSECTION 2.05(b).
7.4 The obligations (i) If all of the Members contained contribute the required capital pro rata ($1,749,500 by Carlyle 14, $3,249,500 by Carlyle 15 and $5,001,000 by M▇▇▇▇▇▇ Partners) there would be no adjustment in this Section 7 are personal the respective Percentage Interests.
(ii) If Carlyle 14 and run only Carlyle 15 did not make their required capital contributions and M▇▇▇▇▇▇ Partners made such contributions (assuming that no loans were made to Carlyle 14 and Carlyle 15 pursuant to SECTION 2.05(c) above) then, assuming that the benefit Net Fair Market Value of the Company has been appraised at an amount that would result in a total distribution of $120 million to Carlyle 14 and the Members and may not be enforced by any third parties. No creditor Carlyle 15 upon liquidation of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreementthe Percentage Interest of M▇▇▇▇▇▇ Partners would be increased by 2.61%. M▇▇▇▇▇▇ PARTNERS 1,749,500 x 17.495% = 0.91% ----------------- 80% x $41,996,399 3,249,500 x 32.495% = 1.69% ----------------- 80% x $78,003,601 The Percentage Interest of Carlyle 14 would be decreased by 0.91% to 16.585%, representation, intention, indication or otherwise and the Percentage Interest of Carlyle 15 would be decreased by 1.69% to the contrary30.805%.
Appears in 4 contracts
Sources: Operating Agreement (Carlyle Real Estate LTD Partnership Xv), Operating Agreement (Carlyle Real Estate LTD Partnership Xv), Operating Agreement (Carlyle Real Estate LTD Partnership Xiv /Il/)
Additional Capital Contributions. 7.1 (a) No Member (or Assignee) shall be obligated required or permitted to make any additional Capital Contribution except as otherwise provided in this Agreement. If agreed to by a Super Majority in Interest of the Members, each Member (and Assignee) shall, upon the written request of the Managers, make additional Capital Contributions to the Company equal to the total amount of additional Capital Contributions required times such Member’s (or Assignee’s) then Percentage Interest. The obligation to make additional capital contributions Capital Contributions shall be the direct obligation of the Member (or Assignee) and shall be enforceable by the Company and each of its Members. The failure of a Member (or Assignee) to the Companymake an additional Capital Contribution shall constitute a material breach of this Agreement. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then Member (or Assignee) fails to make an additional Capital Contribution within fifteen ten (1510) days of notice its due date, (i) the Percentage Interests of the Members (and the Assignees) shall be recalculated under Section 3.2(b) (and again recalculated upon payment of such requirementdelinquent additional Capital Contribution), each and (ii) all amounts distributable by the Company to the Member may(or Assignee) in any capacity shall be suspended and used by the Company to pay to the Company any amounts due the Company pursuant to this Section 3.2(a), but and the Member’s (or Assignee’s) right to receive distributions from the Company shall not be obligated to, contribute restored until the Member (or Assignee) shall have paid in full to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional the delinquent additional Capital Contribution, in whole or in part, as required in Section 7.1 above (plus interest at the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent lesser of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member Prime Rate plus five percent (5%) annually or (ii) to make a Default Loan equal the maximum rate permitted by law, calculated from the date such additional Capital Contribution should have been paid to the Additional Contribution not made date it is paid by the Noncontributing Member (or Assignee), plus any damages to the Company attributable to the failure to timely pay the additional Capital Contribution.
(b) with the unanimous written consent of each Contributing Member, If any additional Capital Contributions are made by Members (or Assignees) pursuant to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate Section 3.2(a) but not in proportion to their respective Percentage Interests. All loans made pursuant to this Section 7.2 shall bear interest at , then the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Percentage Interest of the Noncontributing each Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (CAssignee) shall be increased 100% for each failure amended to equal the percentage resulting from dividing such Member’s (or Assignee’s) aggregate Capital Contributions (including initial and any additional Capital Contributions) by the aggregate Capital Contributions (including initial and any additional Capital Contributions) of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoall Members (and Assignees).
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 3 contracts
Sources: Operating Agreement (Show Me Ethanol, LLC), Operating Agreement (Show Me Ethanol, LLC), Operating Agreement (Show Me Ethanol, LLC)
Additional Capital Contributions. 7.1 No (a) Subject to Section 3.2(f), if the Managing Member shall be obligated to make determines that the Company requires additional capital contributions to the Company. If the Managing Membercover working capital, with the concurrence of Members holding a majority in interest maintenance or capital expenditure needs of the Company, then the Managing Member shall determine there shall be a Required Amount call for any Company purposeadditional Capital Contributions in cash (each such Capital Contribution, including, without limitation, those purposes an "Additional Capital Contribution") from the Members in accordance with the terms and conditions set forth in Article 5clause (b) below. Upon any such call for an Additional Capital Contribution, then within fifteen the Members shall contribute to the Company such Additional Capital Contribution as is designated by the Managing Member to be needed.
(15b) days Each such capital call, if any, shall consist of notice to each Member specifying the following:
(i) the total Additional Capital Contribution required from all Members and the purpose of the Additional Capital Contribution;
(ii) the amount of each Member's pro rata share of the Additional Capital Contribution required (allocated among the Members pro rata in accordance with the percentage of the Membership Interests held by each Member);
(iii) the date on which such Additional Capital Contribution is due (which shall not be less than 10 Business Days after the date that notice of such requirementcapital call is given pursuant to the notice provisions in Section 11.1); and
(iv) the account of the Company to which such Additional Capital Contribution should be made.
(c) If any Member (a "Non-Funding Member") fails to deliver to the Company any amount requested to be contributed by such Member pursuant to a capital call under this Section 4.3 within the time prescribed, the Managing Member may request the amount of such Non-Funding Member's share of the capital call from other Members, in which event, each other Member may, but shall not be obligated toat its election, contribute to the Company his such Non-Funding Member's Additional Capital Contribution. For the avoidance of doubt, in no event shall a Member have the obligation to fund any portion of a Non-Funding Member's Additional Capital Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Ormat Technologies, Inc.), Agreement for Purchase of Membership Interests (Ormat Technologies, Inc.)
Additional Capital Contributions. 7.1 No If, pursuant to Section 3.4, the Managing Member elects to obtain additional funds for the Company through Capital Contributions of the Common Members and the Preferred Members, the Managing Member shall deliver notice thereof to each Member (a “Capital Call”) setting forth the total amount required (the “Capital Call Amount”), and the purpose of such Capital Call. The Capital Call shall further set forth the amount of such Capital Call Amount required to be contributed by each Member, which amount shall be determined as follows:
(i) First, but only during the Commitment Period, 100% of such Capital Call Amount shall be made by the Initial Preferred Member until its Unreturned Capital Contributions plus any capital contributions made by the Initial Preferred Member directly in a Sidecar Investment Entity pursuant to clause (4) below equals one-half of the Unreturned Capital Contributions of the Managing Member, but in no event more than the Maximum Capital Contribution of the Initial Preferred Member; provided, however,
(1) no such Capital Call shall be made on the Initial Preferred Member in an amount less than $5,000,000, unless the remaining portion of the Maximum Capital Contribution of the Initial Preferred Member is less than $5,000,000, in which case the Capital Call Amount shall be such remaining amount,
(2) if the purpose for the Capital Call is to fund an Advance Rate Paydown, the Initial Preferred Member may elect to not make its Capital Contribution, in which case the Managing Member shall make an additional Capital Contribution in accordance with the provisions of Section 3.7 hereof;
(3) if the purpose for the Capital Call is to fund a Senior Loan Acquisition, the Initial Preferred Member may elect to not make its Capital Contribution, in which case the Managing Member or its Affiliate shall have the option, but not the obligation to, acquire the Senior Loan on its own behalf without any restrictions set forth under this Agreement and neither the Initial Preferred Member nor the Company shall have any rights with respect to such Senior Loan; and
(4) if the purpose of the Capital Call is to fund a Sidecar Investment, the Initial Preferred Member shall have the option (A) to make its Capital Contribution to the Company, (B) to make a capital contribution directly to the Sidecar Investment Entity or (C) to elect not to make a Capital Contribution with respect to such Sidecar Investment, in each case in accordance with Section 14.4.
(ii) thereafter, as may be agreed by the Members (provided that the Initial Preferred Member is under no obligation to agree to or make a further contribution). Each of the Members shall be obligated to make their respective additional capital contributions Capital Contribution to the Company. If the Managing Member, with the concurrence of Members holding a majority Company in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then immediately available funds within fifteen (15) days of notice receipt of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 Capital Call. If a Member fails to make his Additional Contributiona Capital Contribution required hereunder, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member Members shall have the option right, but not the obligation, to satisfy such Member’s Additional Capital Contribution by making a loan (a) with the consent of a majority in interest of the Contributing Members (i“Member Loan”) to make a capital contribution the Company equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient product of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure amount of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure defaulting Member’s additional Capital Contribution and (C) 400% upon the third such failure, divided by (ii) a fraction, the numerator of which is such Member’s Capital Percentage and the denominator of which shall be the aggregate amount Capital Percentages of all Capital Contributions made by the Members (including the Additional Contributions received by electing to make a Member Loan to the Company). All Member Loans shall bear interest at a rate of 15% per annum, compounded annually, and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to payable from the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit assets of the Company and the Members and may not be enforced by prior to any third parties. No creditor of the Company may rely on the foregoing provisions of this distributions payable pursuant to Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryV hereof.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Winthrop Realty Trust), Limited Liability Company Agreement (Lexington Master Limited Partnership)
Additional Capital Contributions. 7.1 No Member shall To the extent unanimously approved by the Management Committee, from time to time, the Members may be obligated permitted to make additional capital contributions Additional Capital Contributions above the amounts of the Mandatory Capital Contributions (each an "Additional Capital Contribution"). The Members will have the opportunity, but not obligation, to participate in such Additional Capital Contributions on a pro rata basis in accordance with their then current percentage interests. In the Companyevent a Member (a "Declining Member") declines to make an Additional Capital Contribution, it will notify the other Member and the Company in writing within ten (10) business days of delivery of the Capital Call Notice requesting such Additional Capital Contribution. If Within ten (10) business days after receipt of notice from the Managing Declining Member, with the concurrence of Members holding a majority in interest non-Declining Member may elect to contribute both its share and the Declining Member's share of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Capital Contribution, in whole or in partand thereafter, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest percentage interests of the Contributing Members (i) to make will be adjusted, on a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberdollar-for-dollar basis, to declare reflect the Company terminated as a result new relative proportions of the Noncontributing Member's defaultcapital accounts of the Members. In the event that as a result of a failure to fund an Additional Capital Contribution or Mandatory Capital Contribution, a Declining Member's or Defaulting Member's ownership interest is diluted to less than 25% (if there are two (2) non-affiliated members) or to less than 15% (if there are three (3) or more non-affiliated members), the Declining Member or Defaulting Member will lose all approval rights set forth in Section 4.2 above (until such time as the Declining Member's or Defaulting Member's ownership interest increases to more than one Contributing Member desires to make an Additional Contributionfifteen percent (15%) or twenty-five percent (25%), or is permitted to make a Default Loanas the case may be), on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) non-Declining or non-Defaulting Member may elect to purchase the Noncontributing Declining or Defaulting Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount entire membership interest for a price equal to the percentage equivalent Fair Market Value of such interest, as determined in accordance with the quotient of (i) procedures set forth in Exhibit "B" attached hereto. For the Additional Contribution not made by the Noncontributing Member giving rise to application purposes of this Section 7.3 multiplied by (A) 200% upon the first failure 10.3.3, a Declining or Defaulting Member's ownership interest will be inclusive of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by Member's Affiliates' ownership interests in the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Memorandum of Understanding (Artistdirect Inc), Memorandum of Understanding (Artistdirect Inc)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to Should the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members require cash (i) to make a capital contribution equal to fund the Additional Contribution not made by the Noncontributing Member Company’s share of any JV Capital Call (an “Investment JV Capital Call”), or (ii) to make a Default Loan equal to pay Company Expenses that are not covered by cash receipts of the Additional Contribution not made by Company, then Manager shall seek the Noncontributing Member or (b) with the unanimous written consent of the Members pursuant to Section 7.01(b) to issue a capital notice requiring each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution additional Capital Contribution to the Company pursuant to Section 7.2(an “Additional Capital Contribution”), the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:pro rata in accordance with such Member’s respective Funding Percentage (any such request, a “Capital Call”).
(a) Should the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to Members approve the percentage equivalent of the quotient of Capital Call, (i) the Additional Contribution not made amounts funded by the Noncontributing SP II Member giving rise to application in respect of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contribution shall be Common Equity, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) amounts funded by SL Member in respect of an Additional Capital Contribution shall be Preferred Equity, provided that to the aggregate amount of all Capital Contributions made extent amounts so contributed would exceed amounts permitted by the Members terms of any Financing (including the Additional Contributions received NML Acquisition Financing), such excess shall be treated as Common Equity.
(b) Should the Members not approve the Capital Call, the Manager shall be permitted, without the consent of any Member, to arrange for the funding of such amounts as one or more loans to the Company (each, a “Shortfall Loan”), which (i) shall earn interest at a rate per annum not to exceed twelve percent (12%), (ii) may be made by a Member or one or more third party capital providers selected by Manager (each, a “Shortfall Lender”), (iii) shall be repaid prior to any distributions to the Company)Members pursuant to Section 6.06, and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (Civ) shall not be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit secured by any assets of the Company or any Subsidiary or by any Interest in the Company or any direct or indirect interest in any Member. Following the Preferred Equity Conversion Event, in the event that a REIT Member Owner advances any amount as a Shortfall Loan, then notwithstanding anything to the contrary in this Agreement, the REIT Member Owner shall be entitled to structure any such loan in a manner as may be required to ensure that such REIT Member Owner will not be treated as (x) holding a security described in Section 856(c)(4)(B)(iv) of the Code, or (y) otherwise receiving any income or owning any asset that could, at such time or in the future, cause such REIT Member Owner to fail to qualify as a REIT. This may include, without limitation, the REIT Member Owner requiring that the REIT Member Owner’s related Capital Contribution be returned and the Members REIT Member Owner advance the entire amount of its Capital Contribution and may not be enforced by any third parties. No creditor the Shortfall Loan as a loan to or preferred equity of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (BGO Industrial Real Estate Income Trust, Inc.), Limited Liability Company Agreement (BGO Industrial Real Estate Income Trust, Inc.)
Additional Capital Contributions. 7.1 No Member Upon the consent of a Majority of Members, the Manager shall be obligated have the right to make require additional capital contributions (“Capital Calls”) from the Members to be paid on a pro rata basis as to all Members in accordance with the Company. If the Managing Memberpercentages set forth on Schedule A. The Manager may obtain Company loans to cover any Company required Additional Capital Contributions, with the concurrence consent of the Members holding a majority in interest of the Membership Interest in the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing a Member desires to make an Additional Contributionfails to, or is permitted refuses to make contribute towards a Default LoanCapital Call (the “Defaulting Member”), then either: The remaining Members may elect to purchase the Membership Interest from the Defaulting Member, at a 15% discount to the Defaulting Member’s Initial Capital Contribution; or The remaining Members may elect to contribute the necessary funds (the “Lending Members”) on account behalf of the Noncontributing Defaulting Member which shall be considered a loan to the Defaulting Member, each such Contributing to be secured by its Membership Interest in the Company. Any loan given to the Company by the Lending Member on behalf of the Defaulting Member, shall accrue interest at a rate of 300 basis points above LIBOR per annum. In the event of a Distribution by the Manager under Article 5 herein or under a dissolution of the Company under Article 10 herein, the Manager shall use the funds attributable to the Defaulting Member, to first pay off any loans to the Defaulting Member by the Lending Member. In furtherance of any loan to any Defaulting Member by the Lending Members in accordance with this Section, the Members hereby expressly agree to execute any and all loan documents which the Company’s attorneys deem necessary, including but not limited to; a Note, Guaranty, Loan Agreement, and Pledge Agreement. Furthermore, the Defaulting Member shall be permitted responsible to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to pay for all legal fees that the Company pursuant to Section 7.2, the Interest shall incur in furtherance of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoloan.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Joint Venture Agreement, Joint Venture Agreement (Harrison Vickers & Waterman Inc)
Additional Capital Contributions. 7.1 No (a) If at any time the BH Investor determines (up to an aggregate amount of One Million Dollars ($1,000,000.00) on a pro rata basis according to each Member’s Company Percentage and pursuant to one or more requests) or for any amount over One Million Dollars ($1,000,000.00) in the aggregate the Members determine pursuant to Section 4.2 herein that the Company requires (or will require) additional funds for any purpose (“Cash Needs”), then the BH Investor shall use reasonable efforts to secure third party or Member loans to fulfill such Cash Needs. If such efforts to secure third party or Member loans are unsuccessful, the BH Investor may send the Members written notice (“Additional Capital Notice”) requesting that the Members contribute in cash such amounts as are necessary to satisfy such Cash Needs and describing the purpose for which the funds are needed. If so requested, each Member shall be obligated to make additional capital contributions an Additional Capital Contribution equal to the Company. If product of its Company Percentage and the Managing Member, with the concurrence of Members holding a majority in interest amount of the Company, shall determine there Cash Needs. The time for the payment of any Additional Capital Contribution to the Company shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member maydetermined by the BH Investor, but shall not in no event be obligated to, contribute to less than ten (10) days after the Company his delivery of the Additional ContributionCapital Notice.
7.2 (b) If a Member fails to make his timely contribute all or any portion of any Additional ContributionCapital Contribution required of such Member, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other then such Member shall make his 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 provided herein a loan (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (aa “Default Loan”) with the consent of following results: (A) the sum thus advanced shall constitute a majority in interest of the Contributing Members (i) to make a capital contribution equal loan to the Additional Contribution not made by Delinquent Member for which the Noncontributing Delinquent Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare will pledge its interests in the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contributionsecurity for such loan; (B) such loan and all accrued unpaid interest thereon shall be due on demand, or if no demand is permitted to make a Default Loanmade, on account of twelve (12) months after such advance is made; (C) the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 loan shall bear interest at the Default Rate.
7.3 Upon lesser of twelve percent (12%) per annum or the making of a capital contribution 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 Company pursuant to Section 7.2, the Interest Delinquent Member (whether before or after dissolution of the Noncontributing 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 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 may deem appropriate to obtain payment of the loan at the 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 Contributing Members Delinquent Member shall have its Company Percentage decreased in the following manner: (A) the Company Percentage of the non-Delinquent Member immediately following such Additional Capital Contributions shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) increased by subtracting therefrom an amount equal to one hundred fifty percent (150%) x A/B, where ‘A’ equals the percentage equivalent amount the non-Delinquent Member contributed in respect of the quotient Delinquent Member’s required Additional Capital Contribution, and ‘B’ equals the sum of (i) all unreturned Capital Contributions previously made to the Additional Contribution not made Company by all Members after giving effect to the Noncontributing Member giving rise to application of amounts advanced under this Section 7.3 multiplied by (A3.3(b)(ii) 200% upon the first failure on behalf of the Noncontributing Member to make an Additional Contribution, Delinquent Member; and (B) 300% upon the second such failure and (C) 400% upon Company Percentage of the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made Delinquent Member shall be decreased by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure increase of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majoritynon-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional ContributionDelinquent Member’s Company Percentage. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, 3.3(b)(ii) is set forth in Schedule B Exhibit C attached hereto.
7.4 (c) The obligations exercise by the Company of the remedies set forth in Section 3.3(b) above shall be determined by the non-Delinquent Members contained in this Section 7 are personal their sole discretion and run only not by any Delinquent Member.
(d) With respect to any efforts by the BH Investor to obtain loans to the benefit 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 treated as a Capital Contribution but shall be treated as a debt due from the Company to such Member. Any Default Loan made by a non-Delinquent Member hereunder may be assigned by such non-Delinquent Member to an Affiliate of the non-Delinquent Member and such Affiliate shall have the right to exercise any and all rights granted to the non-Delinquent Member hereunder with respect to such Default Loan. The Partners agree that in the event that the BH Investor shall make a Default Loan hereunder, the BH Investor may structure the loan with such terms (including, if necessary, structuring the Default Loan as a loan to the Company and or structuring the Members and Default Loan so that it complies with the requirements of Revenue Procedure 2003-65, I.R.B. 2003-32) as may be required to ensure that ▇▇ ▇▇▇▇ will not be enforced by any third parties. No creditor treated as holding securities having a value of more than ten percent (10%) of the Company may rely on total voting power or the foregoing provisions total value of this Article 7 or any other provision one issuer for purposes of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryCode Section 856(c)(4).
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. 7.1 No (a) The Board may request that each Member shall be obligated contribute additional capital to the Company from time to time to the extent approved pursuant to Section 5.1(a)(iii)(B) (a “Capital Call”), in each case, in an amount equal, for each Member, to its Percentage Interest of the total Capital Call (for each Member, its “Capital Call Amount”). Upon the Board’s determination to make additional capital contributions a Capital Call, the Company shall deliver written notice to each Member (each a “Capital Call Notice”), stating such Member’s Capital Call Amount, the Company. If wire transfer instructions for transfer of its Capital Call Amount, the Managing Member, with the concurrence of Members holding a majority date by which its Capital Call Amount must be received (which shall in interest of the Company, shall determine there shall no event be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within earlier than fifteen (15) days following the date of the Capital Call Notice) and the Equity Value as of the date of the Capital Call. Each Member will have the right, but not the obligation, to participate in such Capital Call by delivering notice to the Company of its election to do so, which notice shall be delivered no later than ten (10) Business Days following receipt of the Capital Call Notice. Any Member electing to participate shall contribute its Capital Call Amount by wire transfer of immediately available funds in accordance with the corresponding Capital Call Notice, on or before the date stated in such Capital Call Notice.
(b) If for any reason any Member elects not to or fails to timely contribute its full Capital Call Amount pursuant to a Capital Call Notice (such Member, a “Non-Contributing Member”), the Company shall notify the other Member (the “Contributing Member”) of such requirementelection or failure and state the amount that the Non-Contributing Member elected not to or failed to contribute (the “Makeup Contribution Amount”). If any Member is a Non-Contributing Member with respect to a Capital Call, each then the Contributing Member maymay elect to (i) receive the return of any unmatched Capital Contribution made by it in respect of such Capital Call, but shall not be obligated to(ii) convert any unmatched Capital Contribution made by it in respect of such Capital Call into a loan to the Company on the terms set forth in Section 7.4(c) (any such loan, a “Priority Loan”), or (iii) contribute to the Company his Additional Contributionthe Makeup Contribution Amount or any portion thereof in addition to the Contributing Member’s Capital Call Amount contributed pursuant to the Capital Call Notice for such Capital Call, in which case the provisions of Section 7.4(d) shall apply to the Makeup Contribution Amount or portion thereof so contributed.
7.2 (c) All Priority Loans shall bear interest on the outstanding principal amount thereof at an interest rate equal to the lesser of (i) eight percent (8%) per annum, or (ii) the maximum rate permitted by applicable law. All Priority Loans shall compound annually to the extent unpaid. Accrued interest on all amounts advanced under a Priority Loan shall be payable on each annual anniversary of the date such amounts are advanced. All Priority Loans shall be repaid in full prior to any distributions of Distributable Amounts to the Members under Article IX. In any event, each Priority Loan shall in all events mature five (5) years after the date it is funded. If a Member fails more than one Priority Loan is outstanding, then repayment of all Priority Loans shall be made in the reverse order in which such Priority Loans were made (e.g., the most recent Priority Loan shall be repaid prior to make his Additional Contributionrepayment of the next most recent Priority Loan). Payments of Priority Loans shall be applied first to payment of outstanding interest and then to principal until all amounts due thereunder have been paid in full. Priority Loans shall be pre-payable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member")at any time or from time to time, then, so long as any other Member without penalty. Priority Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest be obligations of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing and no Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear liable for repayment of any Priority Loan or any interest at the Default Ratethereon.
7.3 Upon (d) If the making Contributing Member has elected to proceed under clause (iii) of a capital the second sentence of Section 7.4(b), then notwithstanding any other provision of this Agreement to the contrary, upon the Contributing Member’s contribution to the Company of the Makeup Contribution Amount or any portion thereof in addition to the Contributing Member’s Capital Call Amount contributed pursuant to Section 7.2the Capital Call Notice for such Capital Call, the Interest of the Noncontributing Member and Company shall issue to the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount Member that number of additional Units equal to the percentage equivalent of the quotient of (i) the Additional Makeup Contribution not made Amount (or the portion thereof, if applicable) contributed by the Noncontributing Contributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure in respect of the Noncontributing Member Non-Contributing Member’s failure or election not to make an Additional Contribution, (B) 300% upon the second contribute in accordance with such failure and (C) 400% upon the third such failureCapital Call, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure Equity Value as of the Noncontributing Member to make an Additional Contribution giving rise to Capital Call date stated in the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members Capital Call Notice
(e) Except as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) Section 7.4(d), no additional Units shall be increased 100% for each failure issued in connection with any contributions of additional capital to the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations Company by or on behalf of the Members contained in this Section 7 are personal and run only pursuant to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement Section 7.4.
(f) Unless a Member elects to contribute its Capital Call Amount pursuant to a Capital Call Notice, no Member shall be required to make any contributions or returns additional Capital Contributions to the Company.
(g) The provisions of this Section 7.4 are intended solely to benefit the Members and, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryfullest extent permitted by applicable law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor shall be a third party beneficiary of this Agreement), and no Member shall have any duty or obligation to any creditor of the Company to make any additional capital contributions or to cause the Board to consent to the making of additional capital contributions.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (DMC Global Inc.), Limited Liability Company Agreement (DMC Global Inc.)
Additional Capital Contributions. 7.1 (a) At no point shall a Series A Preferred Owner be required to make any additional Capital Contribution with respect to its Preferred Units.
(b) Upon the unanimous approval of the Members, the Manager may, from time to time, call for the payment of additional Capital Contributions from Members on such terms as approved by the Members. The Manager will issue a Call Notice to each Member that shall state the amount of the additional Capital Contribution and each Member’s proportionate share thereof based on such Member’s pro rata Economic Interest as compared to the other Members, as of the date of the Call Notice. The Manager will deliver the Call Notice five (5) Business Days or more in advance of the date that the Capital Contributions requested thereby are due and payable. No Member shall be obligated required to make any additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member mayCapital Contributions, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) opportunity to participate in such additional Capital Contributions on a pro rata basis in accordance with the consent of a majority in interest their Economic Interests of the Contributing Members, or in such other proportions as the participating Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's defaultmay agree upon. In the event that more than one Contributing any Member desires (a “Non-Participating Member”) fails to make all or any part of such Member’s share of an Additional additional Capital Contribution pursuant to this Section 9.2 (the “Non-Participating Contribution”), the other Members, in proportion to the respective Economic Interest of such Members (determined without regard to the Non-Participating Member’s Economic Interest), or is permitted to make a Default Loanin such other proportions as they may agree upon, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate contribute to the Company the amount of such Non-Participating Contribution. Each of the contributing Members shall receive Units in proportion to their respective Intereststhe additional Capital Contributions, including any Non-Participating Contribution, made by such contributing Member, and the Non-Participating Member shall suffer a dilution, in favor of the contributing Members, of his, her or its Common Units. All loans made The value of the Units issued pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C9.2(b) shall be increased 100% for each failure of determined by the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional ContributionManager, is set forth in Schedule B attached heretoits sole discretion.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (AAC Holdings, Inc.), Limited Liability Company Agreement (AAC Holdings, Inc.)
Additional Capital Contributions. 7.1 No (a) Following the Closing, no Member shall be obligated required to make any additional capital Capital Contribution to the Company in respect of the Interests then owned by such Member. Subject to, and in accordance with the provisions of this Agreement, including Section 6.4(b) and Section 4.11, a Member may make additional Capital Contributions to the Company in exchange for Common Units upon the approval of the Board. Any contributions of property after the date hereof shall be valued at their Fair Market Value.
(b) Without limiting the generality of Section 6.4(a) (and without duplication), if after the Closing and prior to an Initial Public Offering, the Company proposes to issue, other than any Exempt Issuances, any Interests (the “Proposed Third Party Interests”), the Company shall first offer (the “Preemptive Rights Notice”) to sell to each Member holding Common Units their respective Pro Rata Share of such Proposed Third Party Interests. A Member, upon receipt of an Initial Preemptive Rights Notice, shall have a reasonable amount of time (but in no event fewer than five Business Days), as determined by the Board in light of the circumstances, to indicate in writing whether it accepts the offer to participate in such issuance, setting forth the number of Proposed Third Party Interests it wishes to purchase (up to its Pro Rata Share of such Proposed Third Party Interests, such portion that such Member wishes to purchase, the “Preemptive Purchase Amount”); provided that in order to exercise its rights under this Section 6.4(b) (“Preemptive Rights”), such Member must execute all customary transaction documents in connection with such issuance on the same terms as each other Member that elects to participate in such issuance; provided further that in the event that the Company is issuing more than one type or class of securities in connection with such issuance, each Member participating in such issuance shall be required to acquire the same percentage of all such types and classes of securities. Upon the earlier of the expiration of such relevant offering period or the date upon which the Members receiving the Preemptive Rights Notice have responded thereto to the Company, (x) if all of the Members have affirmatively responded to such Preemptive Rights Notice to purchase each such Member’s entire Pro Rata Share of such Proposed Third Party Interests, the Company may no longer issue and sell such Proposed Third Party Interests to the offerees thereof or (y) if not all of such Members have affirmatively responded to such Preemptive Rights Notice, then such Proposed Third Party Interests specified in the Preemptive Rights Notice that are not purchased by the Members receiving the Preemptive Rights Notice (the “Declined Interests”) pursuant to the terms of this Section 6.4(b) may be issued and sold by the Company to the offerees thereof (at a purchase price and on terms no less favorable to the Company than the terms set forth in the Preemptive Rights Notice) within forty-five days of the earlier of the expiration of such ten-Business Day period or the date upon which the Members receiving the Preemptive Rights Notice have responded thereto to the Company. If The Company shall issue an aggregate number of Proposed Third Party Interests to each Member that has given written notice of the exercise of its rights hereunder (or to such Member’s designee that is an Affiliate of such Member, which Affiliate shall automatically be admitted as a Non-Management Member after complying with the provisions of Section 3.9) equal to the Preemptive Purchased Amount applicable to such Member as soon as practicable, and in no event later than the later of (i) five Business Days after receipt of such notice, and (ii) the closing of the issuance of such Interests to the third-party purchaser, against payment to the Company by such Member of solely cash consideration for such Interests. Any equity securities not issued within such period will be subject to the provisions of this Section 6.4(b) upon subsequent issuance. The Company shall provide that the issuance of interests in any Subsidiary shall be subject to preemptive rights substantially similar to, and in favor of the holders of, the rights described in this Section 6.4(b); provided, however, that such preemptive rights relating to any Subsidiary shall terminate upon the Initial Public Offering. Notwithstanding the foregoing, in the event a Non-Managing Member, directly or indirectly, is pursuing an acquisition outside the Company in connection with which the concurrence Company is seeking to raise capital for the purpose of Members holding a majority in interest financing such acquisition, the Board may make alternative arrangements appropriate under the circumstances with regard to such Preemptive Rights of such Non-Managing Member.
(c) Notwithstanding anything to the contrary herein, except upon the unanimous approval of the CompanyBoard, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing no Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) right to make a capital contribution equal additional Capital Contributions to the Additional Contribution not made by the Noncontributing Member Company or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member purchase additional Units or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made equity securities pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to 6.4 and the Company shall not be required to deliver a Preemptive Rights Notice in connection with (i) issuances to management, employees, officers or directors of the Company or any of its Subsidiaries pursuant to Section 7.2management incentive programs approved by the Board, including any issuances of Profits Interest Units under this Agreement or any issuances pursuant to an Implemented Equity Plan, (ii) issuances, deliveries or sales of securities by the Interest Company or any of the Noncontributing Member and the Contributing Members shall be adjusted its Subsidiaries to a Third Party as follows:
(a) the Noncontributing Member's Interest shall be decreased consideration in connection with (but not below zeroin connection with raising capital to fund) the acquisition, strategic business combination or investment by subtracting therefrom the Company approved by the Board in any party which is not, prior to such transaction, an amount equal Affiliate of the Company or any Member (whether by merger, consolidation, stock swap, sale of assets or securities, or otherwise), (iii) issuances, deliveries or sales of securities by the Company in an IPO or a registration pursuant to the percentage equivalent Registration Rights Agreement or (iv) issuances of securities upon the quotient conversion or exchange of securities that were previously authorized and approved in accordance with this Agreement (i) the Additional Contribution not made by the Noncontributing Member giving rise to application collectively, “Exempt Issuances”). The provisions of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member 6.4 are intended solely to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by benefit the Members (including the Additional Contributions received by the Company)and, and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage fullest extent permitted by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3applicable law, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by construed as conferring any third parties. No benefit upon any creditor of the Company may rely on the foregoing provisions (and no such creditor shall be a third party beneficiary of this Article 7 Agreement), and no Member shall have any duty or obligation to any other provision creditor of this Operating Agreement the Company to make any contributions additional Capital Contributions or returns to cause the Board to consent to the Company, notwithstanding any agreement, representation, intention, indication or otherwise making of additional Capital Contributions.
(d) Notwithstanding anything to the contrarycontrary contained herein, the Preemptive Rights set forth in Section 6.4(b) shall cease to apply from and after the Initial Public Offering.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (BankUnited, Inc.), Limited Liability Company Agreement (BankUnited, Inc.)
Additional Capital Contributions. 7.1 No A. On or before the Financial Needs Date, each Member shall be obligated to make additional capital contributions contribute to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Companyas an Additional Capital Contribution, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute an amount equal to the Company his Additional Contributiontotal amount specified in the capital call notice from the Manager multiplied by such Member’s then Percentage Interest.
7.2 B. If any Member (a Member “Non-Contributing Member”) fails to make his all or any part of its Additional ContributionCapital Contributions under this Agreement by the Financial Needs Date therefor (such unfunded amount, a “Cash Deficiency”), each of the remaining Members (each a “Contributing Member”), in whole or addition to funding such Contributing Member’s own share, shall be entitled (but not required) to fund the Non-Contributing Member’s share as an additional Capital Contribution by any such Contributing Member. If Contributing Members contribute, in partthe aggregate, as required in Section 7.1 above (more than the "Noncontributing Member")aggregate Cash Deficiencies, then, so long as any other Member shall make his Additional Contribution as provided herein (then the Contributing Members will be deemed to have contributed an amount equal to each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member")’s Percentage Interest multiplied by the aggregate Cash Deficiencies, and any amounts contributed by a Contributing Member in excess of the amount so deemed to have been contributed shall have the option (a) with the consent of a majority in interest be returned to each such Contributing Member. The rights of the Contributing Members (ior any of them) pursuant to the preceding paragraph (and the consequent effect on the Percentage Interests of the Members, as provided in Section 2.4.C) shall be the sole and exclusive remedy of the Members or the Company in the event of a failure by a Non-Contributing Member to make a capital contribution equal to any Capital Contribution required under this Agreement.
C. Upon the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent making of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made any Capital Contributions pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company 2.4 or pursuant to Section 7.22.3.A(iii), each Member’s Percentage Interest shall thereafter be the ratio, expressed as a percentage, equal to such Member’s total Capital Contributions over the aggregate Capital Contributions made by all Members to the Company. The resulting reduction in the Percentage Interest of the Noncontributing Member any Non-Contributing Member(s) and the simultaneous increase of the Percentage Interests of the Contributing Members Member(s) shall be adjusted not effect any change in the Capital Accounts, Unrecovered Capital Contributions, Unrecovered Subordinate Capital Contributions, etc. of the Members, except as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent amount of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (bContributing Member(s) the Contributing Members' Interest shall be increased by adding thereto an amount equal pursuant to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application above provisions of this Section 7.32.4 or pursuant to Section 2.3.A(iii). Any adjustments in Percentage Interest pursuant to this Section 2.4.C. shall be automatic and without the necessity of any action beyond the making of a Capital Contribution by a Contributing Member. Notwithstanding the foregoing, a majority-in-interest however, the Members hereby agree to execute such documents and take such additional actions as may be necessary to effectuate or evidence any such adjustments to the Members’ Percentage Interests. The failure to execute any such documents shall in no way affect the making of any adjustments in the Contributing Members shall have Percentage Interests pursuant to the option, exercisable in their sole discretion, to cause above provisions. If the remaining Percentage Interest of the Noncontributing a Member to be forfeited and allocated is adjusted during a Fiscal Year pursuant to the Contributing Members above, the Profits and Losses from Operations shall be prorated on such basis as the Manager shall determine in its sole discretion which is a permitted method under the Code or the Treasury Regulations. For the period ending on the date of adjustment, Operating Cash Flow shall be distributed pursuant to continue re-allocating the provisions of Article 5 according to the Percentage Interests in effect prior to the date of such adjustment, and Operating Cash Flow for the balance of such Fiscal Year shall be distributed pursuant to the provisions of said Article 5 according to the Percentage Interests of the Noncontributing Member and Contributing such Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) so adjusted. Any allocations and distributions due to a Capital Transaction shall be increased 100% for each failure made based upon the date upon which such Capital Transaction actually occurs. However, any requirement under the Code or the Treasury Regulations which requires a different method of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoProfits and Losses shall control.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Wells Real Estate Investment Trust Inc), Limited Liability Company Agreement (Wells Real Estate Investment Trust Inc)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers from time to time as and to the extent capital is necessary to effect an investment. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by fifty percent (50%) in the case of SOIF II, and fifty percent (50%) in the case of BEMT. Such additional Capital Contributions 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) If a Member (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 Members, provided that each has made the Capital Contribution required to be made by it, in addition to any other remedies each 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 promissory note(s) in form reasonably satisfactory to each non-failing Member (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Members. If Any Default Loan shall bear interest at the Managing Memberrate of twenty (20%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from each non-failing Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-failing Members and agrees to promptly execute such documents and statements reasonably requested by the non-failing Members to further evidence and secure such security interest. Any advance by the non-failing Members on account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 5.2(b)(1) shall be deemed to be a Capital Contribution made by each Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Members 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 Members, 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 Members, and (y) any proceeds of the sale of the Defaulting Members’ 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 Members and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) in lieu of the Noncontributing Member and remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, whereupon the Contributing portion of the Capital Contribution made by the non-failing Members shall be adjusted as follows:
returned within ten (a10) days with interest computed at the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures approved by the Managers. Except as otherwise agreed by the Members, such subsequent and additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by fifty percent (50%) in the case of Bluerock and fifty percent (50%) in the case of ▇▇▇▇, and 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) If a Member (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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty (20%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making Company from available Cash from Operations and Cash from Sale or Refinancing, 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, the Interest of the Noncontributing Member and the Contributing Members 5.2(b)(2) shall not be adjusted treated as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional a Capital Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by Defaulting Member;
(A3) 200% upon the first failure in lieu of the Noncontributing Member to make an Additional remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, (B) 300% upon whereupon the second such failure and (C) 400% upon portion of the third such failure, divided by (ii) the aggregate amount of all Capital Contributions Contribution made by the Members non-failing Member shall be returned within ten (including 10) days with interest computed at the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required under Section 5.2 from any Member if (i) the Company or any other provision 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; provided, however, if such additional Capital Contribution is required to cure a monetary default thereunder then this Operating Agreement subsection (i) exception shall not apply, (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, or (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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company/Joint Venture Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Additional Capital Contributions. 7.1 No (a) Commencing with the calendar year 2003 and continuing with respect to each subsequent calendar year included within the Term, each Member shall have the right (the "Contribution Right") to require that concurrent cash contributions (the "Additional Cash Capital Contributions") of up to Five Thousand Dollars ($5,000) each be obligated made by the Members to make additional the capital contributions to of the Company. If With respect to each such calendar year, (i) if the Managing Memberfirst Member to exercise the Contribution Right exercises such right in the amount of Five Thousand Dollars ($5,000), with then the concurrence of Members holding a majority in interest Contribution Right of the Companyother Member (but not his or its contribution obligation hereunder) shall automatically terminate and (ii) if the first Member to exercise the Contribution Right exercises such right in an amount less than Five Thousand Dollars ($5,000), then the amount subject to the Contribution Right of the other Member (but not his or its contribution obligation hereunder) shall determine there automatically be reduced by the amount covered by the Contribution Right so exercised. Under no circumstances shall either Member be required to contribute more than Five Thousand Dollars ($5,000) in the aggregate to the capital of the Company in any calendar year whether by reason of Contribution Right exercises or otherwise. In connection with each permitted Contribution Right exercise, the Member exercising such right shall send written notice ("Contribution Notice") of such exercise and the dollar amount required to be contributed to the other Member. Each Member shall make the cash contribution set forth in each Contribution Notice within three (3) Business Days following the date of delivery of such notice. Time shall be of the essence for purposes of this Section 3.2(a).
(b) If either Member (a Required Amount for "Non-Contributing Member") fails to timely make a required Additional Cash Capital Contribution and the other Member (the "Contributing Member") has timely made his or its corresponding Additional Cash Capital Contribution, the Contributing Member shall have the right, but not the obligation, to advance directly to the Company as a loan (a "Contribution Loan") the amount of the Additional Cash Capital Contribution not made by the Non-Contributing Member. Each Contribution Loan shall bear interest at a rate per annum equal to the lesser of (i) fifteen percent (15%) or (ii) the maximum rate permitted by applicable law. Each Contribution Loan shall be repaid (first as to interest and then as to principal, until fully repaid) to the Contributing Member in accordance with Section 9.2.
(c) JAF shall also contribute to the capital of the Company all additional shares of NCI capital stock and other equity securities of NCI issued to JAF from time to time after the date of this Agreement in the form of compensation, which when aggregated with all other prior issuances of additional shares of NCI capital stock and other equity securities of NCI after the date of this Agreement, exceeds five percent (5%) of NCI's then issued and outstanding equity securities on a fully diluted basis, unless Hollinger shall have waived JAF's obligation to make such contribution ▇▇ ▇▇▇▇ing. Such shares and other equity securities shall be contributed by JAF promptly following the issuance thereof (but in any Company purposeevent no later than two (2) Business Days after such issuance). In connection with each contribution of shares of NCI capital stock or other equity securities of NCI pursuant to this Section 2.2(c), JAF shall execute, endorse and deliver all documents and instruments (including, without limitation, those purposes set forth stock powers) as shall be necessary to transfer all of JAF's right, title and interest in Article 5, then within fifteen (15) days of notice of and to such requirement, each Member may, but shall not be obligated to, contribute NCI securities to the Company his Company. Hollinger hereby acknowledges and confirms that JAF shall have no obliga▇▇▇▇ ▇▇ ▇ontribute any option granted to JAF (or the securities received upon exercise thereof) by NCI in the ordinary course as part of a customary compensation package. The capital contribution covered by this Section 2.2(c) together with the Initial Capital Contributions and the Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being Cash Capital Contributions are hereinafter collectively referred to as the "Contributing MemberCapital Contributions."), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) In the event it is reasonably determined by the Manager at any time that funds are required to pay for any fees, costs or expenses of the Company in accordance with the Operating Budget, but in excess of what is covered by the Company’s cash on hand, then the Manager shall have the right to request that the Members make Capital Contributions of cash to the Company (“Additional Capital Contributions”), pro rata in accordance with their respective Contribution Percentages. If a Member elects not to make a Capital Contribution, the provisions of Section 5.2(c) shall apply.
(b) Except for the Capital Contributions expressly provided to be made by the Members on the Effective Date, no Member shall be obligated required to make additional capital contributions to the Company. If the Managing Memberany other Capital Contributions, with the concurrence of Members holding a majority in interest of the Company, shall determine there it being understood that all other Capital Contributions shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth made by the Members in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contributiontheir sole discretion.
7.2 (c) If a any Member fails elects not to make his Additional Contribution, in whole a Capital Contribution called pursuant to this Section 5.2 or in part, as required in otherwise does not timely make a Capital Contribution called pursuant to this Section 7.1 above 5.2 (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being is hereinafter referred to as "a “Non-Contributing Member"” and the amount the Non-Contributing Member elected not to or did not fund is referred to as an “Unfunded Amount”), then any other Member (a “Contributing Member Member”) may fund all or any part of the Unfunded Amount as an Excess Capital Contribution, which shall have the option (a) accrue Excess Capital Preferred Return in accordance with the consent terms hereof, on a quarterly compounded basis. An “Excess Capital Contribution” of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted deemed to participate in proportion be equal to their respective Interests. All loans made the portion of the Unfunded Amount contributed by the Contributing Member pursuant to this Section 7.2 shall bear interest at the Default Rate5.2.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Consolidated Tomoka Land Co)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers from time to time as and to the extent capital is necessary to effect an investment. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by ten percent (10%) percent in the case of SOIF and ninety percent (90%) in the case of SOIF II. Such additional Capital Contributions 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) If a Member (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 Members, provided that each has made the Capital Contribution required to be made by it, in addition to any other remedies each 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 promissory note(s) in form reasonably satisfactory to each non-failing Member (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Members. If Any Default Loan shall bear interest at the Managing Memberrate of twenty (20%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from each non-failing Member and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-failing Members and agrees to promptly execute such documents and statements reasonably requested by the non-failing Members to further evidence and secure such security interest. Any advance by the non-failing Members on account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 5.2(b)(1) shall be deemed to be a Capital Contribution made by each Defaulting Member except as otherwise expressly provided herein. All Distributions to the Defaulting Members 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 Members, 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 Members, and (y) any proceeds of the sale of the Defaulting Members’ 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 Members and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) in lieu of the Noncontributing Member and remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, whereupon the Contributing portion of the Capital Contribution made by the non-failing Members shall be adjusted as follows:
returned within ten (a10) days with interest computed at the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company/Joint Venture Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated (a) If, at any time and from time to time, (i) the Company or any Subsidiary requires Necessary Funds, or (ii) the Members jointly agree to make additional capital contributions for any other purpose, then the Members shall make additional contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest capital of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes (herein collectively referred to as "Additional Capital Contributions") on the terms set forth in Article 5this Section 8.4.
(b) If the Administrative Member determines, in its reasonable discretion, that the Company or any Subsidiary requires Necessary Funds, or if the Members jointly agree to make additional capital contributions for any other reason, then within fifteen the Administrative Member shall give written notice to the Members (15a "Capital Contribution Notice") days setting forth:
(i) the amount of notice additional capital required by the Company or otherwise agreed to be funded by the Members,
(ii) in the case of Necessary Funds, the specific purpose for which such requirementadditional capital is required, each Member may, but and
(iii) a contribution date by which the Members shall be required to make any such Additional Capital Contributions (which shall not be obligated to, contribute to less than twenty (20) days following the Company his Additional Contributiondate of the Capital Contribution Notice).
7.2 If (c) Each Member shall contribute its pro rata share of any Additional Capital Contributions based upon the Ownership Percentages of the Members; provided, however, that if any Additional Capital Contribution is made pursuant to Section 8.4 at a time when distributions have previously been made to VEREIT Member fails pursuant to make his Additional ContributionSection 9.1(c), in whole Section 9.2(a)(v), or in part, as required in Section 7.1 above (the "Noncontributing Member"9.2(b)(iii), then, so long as any other Member such Additional Capital Contribution shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be made in accordance with the consent of a majority in interest Members' respective proportionate shares of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not distributions made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this under Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company9.1(c),Section 9.2(a)(v), and (bSection 9.2(b)(iii) the Contributing Members' Interest shall be increased by adding thereto an amount equal in reverse order and to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure extent of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3distributions made, a majority-in-interest of the Contributing Members shall have the option, exercisable and thereafter in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple accordance with Ownership Percentages. The remedies set forth in clause (i) (C) shall be increased 100% for each failure Section 8.5 constitute the sole and exclusive remedies if a Member does not timely make the full amount of the Noncontributing Member to make an its Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure Capital Contribution following receipt of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoCapital Contribution Notice.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Orion Office REIT Inc.)
Additional Capital Contributions. 7.1 No (a) Except as contemplated hereby, no Member shall be obligated required to make additional capital contributions to the Companycontributions. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each No Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to may make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a optional capital contribution to the Company pursuant to Section 7.2, without the Interest prior written consent of the Noncontributing other Member. The Percentage Interests of each Member and the Contributing Members shall be adjusted to reflect any additional capital contribution.
(b) If the Company needs additional funds to operate the Business , or to avoid a default of any material agreement to which it is a party, or to continue its business, then the Voting Members shall make such additional capital contributions ("Additional Capital Contributions") as followsshall reasonably be necessary. The aggregate amount of the Additional Capital Contributions at any one time shall be in proportion to the Voting Members' respective Percentage Interests as of such time; provided, however, that if a Voting Member (a "Defaulting Member") declines to make such Additional Capital Contribution, then:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the other Members ("Contributing Members") shall first have the right to make the Additional Capital Contributions, in proportion to the respective Percentage Interests among the Contributing Members, or in such other proportions as the Contributing Members may agree;
(ii) a Capital Contribution not may be made by a new Member, who shall be approved by all the Noncontributing Member giving rise Members, such approval not to application of this Section 7.3 multiplied by be unreasonably withheld;
(iii) if the funds provided pursuant to clauses (i) and (ii) are not sufficient, then (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majoritynon-in-interest of the Contributing Defaulting Members shall have the option, exercisable in their sole discretion, right to cause purchase all (but not less than all) the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Percentage Interests of the Noncontributing Member Defaulting Member, at the price and Contributing Members as provided in on the preceding sentence except that the percentage multiple terms set forth in Section 9.5 (Stipulated Percentage Interest and Stipulated Value) below, or (B) if the non-Defaulting Members do not make the election under clause (A), the Company shall obtain funds by such other methods as all the Members shall agree.
(c) If the Company is unable to obtain all the funds required by paragraph (b) above, then, at the election of the non-Defaulting Member (or, if more than one, a majority of such non-Defaulting Members), a "Mutual Termination Event" shall be deemed to have occurred, and the following shall apply:
(i) (C) No Member shall thereafter be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement required to make any contributions or returns Capital Contribution.
(ii) Each Member shall continue to be bound by the Sections 11.1 (Confidentiality), 11.2 (Non-competition) and 11.3 (Standstill) of the Agreement.
(iii) All Members shall retain their respective Percentage Interests in the Company.
(iv) If the Mutual Termination Event occurs more than 6 months after the commercial availability of the Company's first product or service, notwithstanding any agreementthen
(1) the Company shall terminate its license (as licensee) of the "find.com" URL, representation, intention, indication or otherwise and (2) FIND/SVP shall pay an aggregate of $75,000 to the contrary▇ll Members (excluding itself).
Appears in 1 contract
Sources: Operating Agreement (Find SVP Inc)
Additional Capital Contributions. 7.1 No (a) Commencing with the calendar year 2003 and continuing with respect to each subsequent calendar year included within the Term, each Member shall have the right (the "Contribution Right") to require that concurrent cash contributions (the "Additional Cash Capital Contributions") of up to Five Thousand Dollars ($5,000) each be obligated made by the Members to make additional the capital contributions to of the Company. If With respect to each such calendar year, (i) if the Managing Memberfirst Member to exercise the Contribution Right exercises such right in the amount of Five Thousand Dollars ($5,000), with then the concurrence of Members holding a majority in interest Contribution Right of the Companyother Member (but not his or its contribution obligation hereunder) shall automatically terminate and (ii) if the first Member to exercise the Contribution Right exercises such right in an amount less than Five Thousand Dollars ($5,000), then the amount subject to the Contribution Right of the other Member (but not his or its contribution obligation hereunder) shall determine there automatically be reduced by the amount covered by the Contribution Right so exercised. Under no circumstances shall either Member be required to contribute more than Five Thousand Dollars ($5,000) in the aggregate to the capital of the Company in any calendar year whether by reason of Contribution Right exercises or otherwise. In connection with each permitted Contribution Right exercise, the Member exercising such right shall send written notice ("Contribution Notice") of such exercise and the dollar amount required to be contributed to the other Member. Each Member shall make the cash contribution set forth in each Contribution Notice within three (3) Business Days following the date of delivery of such notice. Time shall be of the essence for purposes of this Section 3.2(a).
(b) If either Member (a Required Amount for "Non-Contributing Member") fails to timely make a required Additional Cash Capital Contribution and the other Member (the "Contributing Member") has timely made his or its corresponding Additional Cash Capital Contribution, the Contributing Member shall have the right, but not the obligation, to advance directly to the Company as a loan (a "Contribution Loan") the amount of the Additional Cash Capital Contribution not made by the Non-Contributing Member. Each Contribution Loan shall bear interest at a rate per annum equal to the lesser of (i) fifteen percent (15%) or (ii) the maximum rate permitted by applicable law. Each Contribution Loan shall be repaid (first as to interest and then as to principal, until fully repaid) to the Contributing Member in accordance with Section 9.2.
(c) JAF shall also contribute to the capital of the Company all additional shares of NCI capital stock and other equity securities of NCI issued to JAF from time to time after the date of this Agreement in the form of compensation, which when aggregated with all other prior issuances of additional shares of NCI capital stock and other equity securities of NCI after the date of this Agreement, exceeds five percent (5%) of NCI's then issued and outstanding equity securities on a fully diluted basis, unless ▇▇▇▇▇▇▇▇▇ shall have waived JAF's obligation to make such contribution in writing. Such shares and other equity securities shall be contributed by JAF promptly following the issuance thereof (but in any Company purposeevent no later than two (2) Business Days after such issuance). In connection with each contribution of shares of NCI capital stock or other equity securities of NCI pursuant to this Section 2.2(c), JAF shall execute, endorse and deliver all documents and instruments (including, without limitation, those purposes set forth stock powers) as shall be necessary to transfer all of JAF's right, title and interest in Article 5, then within fifteen (15) days of notice of and to such requirement, each Member may, but shall not be obligated to, contribute NCI securities to the Company his Company. ▇▇▇▇▇▇▇▇▇ hereby acknowledges and confirms that JAF shall have no obligation to contribute any option granted to JAF (or the securities received upon exercise thereof) by NCI in the ordinary course as part of a customary compensation package. The capital contribution covered by this Section 2.2(c) together with the Initial Capital Contributions and the Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being Cash Capital Contributions are hereinafter collectively referred to as the "Contributing MemberCapital Contributions."), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) If from time to time, in the judgment of Members with Voting Interests of more than 50 percent, the Company requires additional capital for any purpose, each Member shall be obligated to make additional capital contributions to given the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member mayopportunity, but shall not be obligated toobligated, to contribute in cash to the Company his Additional Contributionan amount equal to its share of such additional contribution (which amount shall be the total of such additional contribution multiplied by the Member's Interest). The contributions by the Members shall be made within 60 days after notice by the Manager to the Members of the amount due. Such notice shall be in writing and shall specify the amount of such capital contributions.
7.2 (b) If a any Member fails to make his Additional Contributionany additional capital contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member may advance such funds to the Company on behalf of the delinquent Member, in which case the Member advancing such funds shall make his Additional Contribution as have a lien and charge on, and shall receive from the Company, all distributions payable to the delinquent Member until such advancing Member has been repaid in full the amount so advanced, plus interest at the federal midterm rate provided herein for under §1274(d) of the Code, plus two percent (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"2%), until paid. Repayment of any Contributing Member's advance of capital shall be secured by the delinquent Member's interest in the Company and the delinquent Member hereby grants a security interest in such membership interest to (and agrees to take all steps to perfect such security interest for) the Member who has advanced such additional capital. If such advance, plus accrued interest, is not repaid in full within 60 days from the date the advance is made, then the Member advancing such funds shall have the option (a) with unilateral right, at any time prior to the consent delinquent Member's repayment of a majority in interest of the Contributing Members such advance plus accrued interest, to (i) continue to make a capital contribution equal to receive the Additional Contribution not made by the Noncontributing Member delinquent Member's distributions, or (ii) to make cause a Default Loan equal to reduction in the Additional Contribution not made by delinquent Member's Interest and a corresponding increase in the Noncontributing Member or (b) with the unanimous written consent of each Contributing non‑delinquent Member, to declare the Company terminated as a result 's Interest. The Interest of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing delinquent Member shall be permitted reduced to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.following:
Appears in 1 contract
Sources: Operating Agreement
Additional Capital Contributions. 7.1 No Member shall To the extent unanimously approved by the Management Committee, from time to time, the Members may be obligated permitted to make additional capital contributions Additional Capital Contributions above the amounts of the Mandatory Capital Contributions (each an "Additional Capital Contribution"). The Members will have the opportunity, but not obligation, to participate in such Additional Capital Contributions on a pro rata basis in accordance with their then current percentage interests. In the Companyevent a Member (a "Declining Member") declines to make an Additional Capital Contribution, it will notify the other Member and the Company in writing within ten (10) business days of delivery of the Capital Call Notice requesting such Additional Capital Contribution. If Within ten (10) business days after receipt of notice from the Managing Declining Member, with the concurrence of Members holding a majority in interest non-Declining Member may elect to contribute both its share and the Declining Member's share of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Capital Contribution, in whole or in partand thereafter, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest percentage interests of the Contributing Members (i) to make will be adjusted, on a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberdollar-for-dollar basis, to declare reflect the Company terminated as a result new relative proportions of the Noncontributing Member's defaultcapital accounts of the Members. In the event that as a result of a failure to fund an Additional Capital Contribution or Mandatory Capital Contribution, a Declining Member's or Defaulting Member's ownership interest is diluted to less than 25% (if there are two (2) non-affiliated members) or to less than [***]* (if there are three (3) or more non-affiliated members), the Declining Member or Defaulting Member will lose all approval rights set forth in Section 4.2 above (until such time as the Declining Member's or Defaulting Member's ownership interest increases to more than one Contributing Member desires to make an Additional Contribution[***]* or [***]*, or is permitted to make a Default Loanas the case may be), on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) non-Declining or non-Defaulting Member may elect to purchase the Noncontributing Declining or Defaulting Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount entire membership interest for a price equal to the percentage equivalent Fair Market Value of such interest, as determined in accordance with the quotient of (i) procedures set forth in Exhibit "B" attached hereto. For the Additional Contribution not made by the Noncontributing Member giving rise to application purposes of this Section 7.3 multiplied by (A) 200% upon the first failure 10.3.3, a Declining or Defaulting Member's ownership interest will be inclusive of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by Member's Affiliates' ownership interests in the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No Other than as set forth in this Section 3.10, no Member shall be obligated have any obligation to make additional capital contributions to the CompanyCompany or to fund, advance, or lend monies which may be necessary to pay deficits, if any, incurred by the Company during the term hereof.
(a) Members may make loans to the Company from time to time, as authorized by the Board. If Any payment or transfer accepted by the Managing Company from a Member which is not a capital contribution complying with Section 3.1 or this Section 3.10 shall be deemed a loan and shall neither be treated as a contribution to the capital of the Company for any purpose hereunder, nor entitle such Member (as such) to any increase in such Member's interest. Any such loan shall be repaid at such times and with such interest (at rates not to exceed the maximum permitted by law) as the Board and the lending Member shall reasonably agree.
(b) If, with the concurrence of Members holding a majority in interest respect to any real estate investment of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen the Board of Governors determines that an additional contribution is required (15) days of notice of such requirementan "additional investment contribution"), each Member may, but of the Company shall not be obligated to, timely contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's defaultpro rata share of such additional investment contribution, determined in accordance with his membership interest. In the event that more than one Contributing a Member desires (the "defaulting member") fails to make an Additional Contributionany payment, or is installment thereof, when due, of any contribution or other obligation under this Section 3.10(b), the remaining Members, acting through a majority of their interests, may enforce such obligation in such manner as may be permitted to make a Default Loan, on account by law. Without limiting the generality of the Noncontributing Memberforegoing, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2members may, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) bring an action at law or in equity to enforce such obligation; (Cii) assess interest on the unpaid amount at the highest rate of interest then being charged to the Company by any lender; and (iii) require the defaulting member, provided such default shall be increased 100% for each failure not theretofore have been cured, unconditionally and irrevocably to assign to one or more of the Noncontributing Member to make an Additional Contribution. An example remaining Members (determined in accordance with the next succeeding sentence hereof) that portion of the operation defaulting Member's interest that bears the same ratio to all of this Section 7.3 with respect the defaulting Member's interest as the remaining amount of unpaid contributions, whether due or not yet due, of the defaulting Member bears to the total amount of contributions, paid and unpaid, required to be made by the defaulting Member. If the non-defaulting member requires assignment of all or a re-allocation of Interests upon the first failure portion of a Noncontributing defaulting Member's interest pursuant to subdivision (iii) above, each remaining Member shall have the right to make an Additional Contributionacquire such interest, is set forth determined as aforesaid, in Schedule B attached hereto.
7.4 The obligations the proportion that its interest bears to the aggregate interests of the remaining Members contained who desire to participate in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrarysuch purchase.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) If a Shortfall occurs, and the Company does not obtain a Third-party Loan on terms acceptable to the Executive Committee to fund the Shortfall, or any Member shall have made a Recourse Payment, either Member or the Executive Committee may (but is not obligated to) deliver a notice (each, a “Funding Notice”) to the Members setting forth the amount of the Recourse Payment or Shortfall (as the case may be) and a description in reasonable detail of the basis of such Recourse Payment or Shortfall (as the case may be), together with supporting calculations and relevant material documentation. The decision to send a Funding Notice may be obligated made by such Member or the Executive Committee without regard to any Member’s ability to pay its share of the Recourse Payment or Shortfall (as the case may be). Each Member shall have the right, but not the obligation, to make additional (or to cause one of its Affiliates to make on its behalf) capital contributions to the Company in an amount equal to its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within ten (10) Business Days after receipt of a Funding Notice, “Additional Capital Contributions”). If a Member (the “Non-Contributing Member”) fails to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within the ten (10) Business Day period, any amounts funded (directly or indirectly) by the other Member (the “Contributing Member”) towards its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) shall not be considered an Additional Capital Contribution, but rather, at such Member’s option, shall either (i) be refunded to the Contributing Member in its entirety, or (ii) be treated as a Priority Loan to the Company. If In the Managing event that the Contributing Member chooses to have the amount of Recourse Payment or Shortfall (as the case may be) funded by such Member treated as a Priority Loan, such Member shall also have the option, but not the obligation, to fund the portion of the Recourse Payment or Shortfall (as the case may be) that was not contributed by the Non-Contributing Member as a loan to the Company. Any such loans shall be made within ten (10) Business Days after the Contributing Member receives notice or acquires knowledge of the fact that the Non-Contributing Member has elected not to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be). The outstanding principal of any loans made by a Contributing Member under this Section 4.4 shall accrue interest at a rate equal to eighteen percent (18%) per annum, compounded monthly (the “Priority Rate”), which interest shall be added to the principal, such principal and interest, together, the “Priority Loan”). All Priority Loans shall be repaid in accordance with Article 5; provided, however, that the Priority Loan of a Contributing Member shall be extinguished and be deemed paid in full upon the Non-Contributing Member funding an amount equal to its Percentage Membership Interest multiplied by the then outstanding amount of such Contributing Member’s Priority Loan, the proceeds of which shall be immediately distributed to the Contributing Member in accordance with Section 5.3(b) and the remaining unpaid balance of the Priority Loan shall be converted to and deemed to be an Additional Capital Contribution by the Contributing Member. Notwithstanding anything to the contrary contained herein, the Duke Member shall not have the right to send a Funding Notice during any period of time that the Duke Member has failed to pay a Rent Subsidy (as defined in the applicable Contribution Agreement) with respect to any Property.
(b) Subject to Section 4.4(a), any Additional Capital Contributions necessary to fund Building Expansions shall be payable in installments in accordance with the applicable construction schedule and construction agreement.
(c) In connection with each Subsequent Closing under a Contribution Agreement, the Qualified Future Development Project Agreement or the Qualified Future Asset Investment Agreement, the Duke Member may, in accordance with the terms of the Contribution Agreement, the Qualified Future Development Project Agreement or the Qualified Future Asset Investment Agreement, in lieu of contributing any Subsequent Closing Property to the Company (or a Subsidiary), sell such Subsequent Closing Property to the Company (or a Subsidiary) for an amount in cash equal to the Agreed Value of such Subsequent Closing Property, and the CBRE Member and the Duke Member shall contribute an aggregate amount in cash equal to the Agreed Value of such Subsequent Closing Property, pro rata in accordance with their respective Percentage Membership Interests; provided, however, that there is no adverse tax consequence or other adverse financial consequence to the Company or its Members.
(d) The remedies provided in Section 4.4(a) with respect to the refund of any Additional Capital Contributions or the making of Priority Loans and in Section 4.3(b) (for failure of a non-paying Member to pay its share of Recourse Payments) are the only remedies available to a Contributing Member (or a paying Member, as applicable) with respect to any Non-Contributing Member’s failure (or non-paying Member, as applicable) to make an Additional Capital Contribution, and, except as otherwise expressly provided in this Section 4.4 or 4.3(b), no Member shall have any liability for any failure to make all or any portion of any Additional Capital Contribution requested to be made by such Member pursuant to Sections 4.4(a) and 4.4(b); provided, however, that notwithstanding the concurrence foregoing, each Member shall be and remain liable for the payment of Members holding a majority all amounts due from such Member pursuant to any guaranties or indemnities given to the Company (or any other Person) by such Member in interest connection with any Loan or any financing of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 (e) If a Member fails has a right to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member")a Priority Loan, then, so long as any other Member shall make his Additional Contribution as provided herein in the alternative, (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any i) the Contributing Member shall have the option (a) with right to contribute to the consent of a majority in interest capital of the Company the same amount that such Non-Contributing Members Member would have been entitled to contribute under Section 4.4(a) as a Priority Loan (i) to make a capital but any such contribution equal to the will not be treated as an Additional Contribution not made by the Noncontributing Member or Capital Contribution), (ii) to make any such contribution shall accrue a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest preferential return at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure Priority Rate and (Ciii) 400% upon notwithstanding the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 Section 5.1 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary, the amount of such contribution and the preferential return thereon shall be repaid to the Contributing Member at the same time that such Contributing Member would have received payments of principal and interest if such contribution had been a Priority Loan.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cb Richard Ellis Realty Trust)
Additional Capital Contributions. 7.1 No Member (a) If funds are required for any expenditure of the Company necessary for the operation of the Company and/or any expansion of the Company as Approved by the Board, the Company shall be obligated seek such funds in the following order of priority: (i) cash generated by the operations of the Company; (ii) loans from AFAM or any AFAM Affiliate (the “Lender”) pursuant to the Revolving Line of Credit described in Section 4.6 and other loans on terms mutually agreeable to the Lender and the Company (with the Class B Director making such decisions with respect to the Company for purposes of this clause (ii)); and (iii) commercial loans from third parties on terms mutually agreeable to the Company and such third party lender(s), subject to the Approval of the Board consistent with the requirements of Section 8.3(b). If the Company has made commercially reasonable efforts to obtain the needed funds as set forth above and has been unable to do so, the Manager, upon the Approval of the Board consistent with the requirements of Section 8.3(b), shall have the right to request that the Members make additional capital contributions (“Additional Capital Contributions”) (pro rata in accordance with each Member’s Sharing Percentage) to the CompanyCompany in excess of their then current Capital Contributions. If the Managing MemberManager, as Approved by the Board consistent with the concurrence requirements of Members holding Section 8.3(b), makes such a majority in interest request, no Member shall be required to make such Additional Capital Contribution, provided that if any Member elects not to make a portion or all of the Companyrequested Additional Capital Contribution (a “Noncontributing Member”), the other Members (the “Contributing Members”) shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, have the right to contribute to the Company his the amount of cash that the Noncontributing Member or Members failed to contribute. The Members shall have thirty (30) days from the Board of Directors’ request in which to elect to make or not make such Additional Contribution.
7.2 Capital Contributions. If a any Member makes an Additional Capital Contribution and any other Member fails to make his contribute any portion of the amount of Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Capital Contribution requested of such Member"), then, so long effective as any other Member shall make his of the end of such thirty (30) day period (or, if later, the date on which the Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"Capital Contributions are made), any Contributing Member the Company shall be deemed to have issued the option (a) with the consent number of a majority in interest of additional Units to the Contributing Members (iwithout any further action by any Member or the Manager) to make a capital contribution equal to the Additional Contribution not made quotient obtained by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) dividing the aggregate amount of all the Additional Capital Contributions made by the Members by the “Unit Price”. For this purpose, the “Unit Price” shall be the aggregate balance in the Capital Accounts of all the Members (including determined as of immediately after taking into account any adjustments under Section 4.3(e) but before taking into account the Additional Contributions received Capital Contributions) divided by the Companynumber of outstanding Units (determined without regard to the Units to be issued as a result of the Additional Capital Contributions), and (b) the Contributing Members' Interest . Exhibit B hereto shall be increased by adding thereto an amount equal amended to reflect such change in the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of Members’ Units under this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto4.2.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with In addition to the consent of a majority in interest Initial Capital Contributions of the Contributing Members, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Membership Interests, as determined by the unanimous consent of the Managers from time to time to be reasonably necessary to pay any operating, capital or other expenses relating to the Business (such additional Capital Contributions, the “Additional Capital Contributions”), provided, that such Additional Capital Contributions shall not exceed the corresponding amounts expressly provided for in the then-current Budget, as it may be amended from time to time in accordance with Section 7.06(b). All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Managers unanimously making of such determination for Additional Capital Contributions, the Managers shall deliver a capital contribution written notice to the Company pursuant to Section 7.2, the Interest Members of the Noncontributing Member and the Contributing Members Company’s need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member’s share of such aggregate amount of Additional Capital Contributions based upon such Member’s Membership Interest, and (iv) the date (which date shall not be less than five (5) 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 (including the Additional Contributions received by the Company), and Members.
(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 which 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 “Contributing Member”) shall be entitled, but not obligated, to loan to the Non-Contributing Member, by contributing to the Company on its behalf, all or any part of the amount (the “Default Amount”) that the Non-Contributing Member failed to contribute to the Company (each such loan, a “Default Loan”), provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. Such Default Loan shall be treated as an Additional Capital Contribution by the Non-Contributing Member. 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 (i) 5% per annum or (ii) the maximum rate permitted at law (the “Default Rate”). 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(d). So long as a Default Loan is outstanding, the Non-Contributing Member shall have the right to repay the Default Loan (together with interest then due and owing) in whole or in part. Upon the repayment in full of all Default Loans (but not upon their conversion as provided in Section 3.02(c)) made in respect of a Non-Contributing Member (and so long as the Non-Contributing Member is not otherwise a Non-Contributing Member), such Non-Contributing Member shall cease to be a Non-Contributing Member.
(c) At any time after six (6) months after a Default Loan is made, at the option of the Contributing Members' Interest Member, (i) such Default Loan shall be increased by adding thereto converted into an Additional Capital Contribution of the Contributing Member in an amount equal to the percentage by which the Noncontributing Member's Interest was decreased principal and unpaid interest on such Default Loan pursuant to clause this Section 3.02(c), (aii) above. Upon the fourth Non-Contributing Member shall be deemed to have received a distribution, pursuant to ARTICLE VI, of an amount equal to the principal and each subsequent failure unpaid interest on such Default Loan, (iii) such distribution shall be deemed paid to the Contributing Member in repayment of the Noncontributing Default Loan, (iv) such amount shall be deemed contributed by the Contributing Member to make as an Additional Capital Contribution giving rise (a “Cram-Down Contribution”), and (v) the Contributing Member’s Capital Account shall be increased by, and the Non-Contributing Member’s Capital Account shall be decreased by, an amount equal to the application principal and unpaid interest on such Default Loan. A Cram-Down Contribution shall be deemed an Additional Capital Contribution by the Contributing Member making (or deemed making) such Cram-Down Contribution as of this Section 7.3the date such Cram-Down Contribution is made or the date on which such Default Loan is converted to a Cram-Down Contribution. At the time of a Cram-Down Contribution, a majority-in-interest the Membership Interest of the Contributing Members Member shall have be increased proportionally by the optionamount of such contribution, exercisable in their sole discretion, to cause thereby diluting the remaining Membership Interest of the Noncontributing Member to be forfeited and allocated to Non-Contributing Member. Once a Cram-Down Contribution has been made (or deemed made), no subsequent payment or tender in respect of the Contributing Members or to continue reCram-allocating Down Contribution shall affect the Membership Interests of the Noncontributing Members, as adjusted in accordance with this Section 3.02(c).
(d) 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 Members as provided Member (i) first, to accrued and unpaid interest on all Default Loans (in the preceding sentence except order of their original maturity date), (ii) second to the principal amount of such Default Loans (in the order of their original maturity date) and (iii) third, to any Additional Capital Contribution of such Non-Contributing Member that has not been paid and is not deemed to have been paid.
(e) Notwithstanding the percentage multiple foregoing, if a Non-Contributing Member fails to make its Additional Capital Contribution in accordance with Section 3.02(a), without limitation of any other available rights or remedies that may be available, the Contributing Member may:
(i) institute proceedings against the Non-Contributing Member, either in the Contributing Member’s own name or on behalf of the Company, to obtain payment of the Non-Contributing Member’s portion of the Additional Capital Contributions, together with interest thereon at the Default Rate from the date that such Additional Capital Contribution was due until the date that such Additional Capital Contribution is made, at the cost and expense of the Non-Contributing Member; or
(ii) elect to dissolve and liquidate the Company pursuant to ARTICLE XII.
(f) If a Member is characterized as a Non-Contributing Member, then, so long as the Member remains a Non-Contributing Member, it shall forfeit and no longer be entitled to any consent or voting rights granted in this Agreement.
(g) Except as set forth in clause (i) (C) this Section 3.02, neither Member shall be increased 100% for each failure of the Noncontributing Member required to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to additional Capital Contributions or make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns loans to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (CurrencyWorks Inc.)
Additional Capital Contributions. 7.1 No 3.6.1 Except as set forth in Sections 3.2 through 3.4 and Section 3.6.2, no Member shall be obligated required to make any additional Capital Contributions to the Company.
3.6.2 If after the [***], the Company requires funding in addition to the funding provided under Sections 3.2 through 3.4, the Board (if such additional funding is not contemplated in the then-current Business Plan) or any Manager (if such additional funding is in accordance with the then-current Business Plan) may require the Members to make additional Capital Contributions in an amount sufficient to fund such cash need (the “Additional Capital Contributions”) in proportion to their Percentage Interests by delivering a Written capital contributions call request to the CompanyMembers (the “Additional Capital Contribution Notice”). If The Company shall deliver the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen Additional Capital Contribution Notice at least thirty (1530) days of notice of prior to the required date for such requirement, contribution and each Member may, but shall not be obligated to, contribute make the applicable Additional Capital Contribution to the Company his within ten (10) Business Days after the receipt of the applicable Additional ContributionCapital Contribution Notice.
7.2 3.6.3 If a Member fails to make his contribute all or any portion of an Additional Contribution, in whole or in part, as Capital Contribution required to be made by such Member (the “Non-Contributing Member”) under this Agreement within the time period specified in Section 7.1 above 3.6.2 above, the Manager(s) who are not affiliated with the Non-Contributing Member shall send Written notice to any Member which has contributed the full amount of all of its funding commitments under this ARTICLE III due and payable at the time (each, a “Contributing Member”) stating that the Non-Contributing Member is in default under this Section 3.6 and setting forth the amount of the Additional Capital Contribution not made by such Non-Contributing Member (the "Noncontributing Member"“Shortfall Amount”), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any . The Contributing Member shall have the option right (abut not the obligation) with the consent of a majority in interest of the Contributing Members to elect to either: (i) to make a capital contribution equal withdraw its share of the applicable requested Additional Capital Contribution in an amount up to the Additional Contribution not made by the Noncontributing Member Shortfall Amount; or (ii) to make a Default Loan equal contribute all or any portion of the Shortfall Amount to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing MemberCompany, to declare the Company terminated which shall be treated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each loan by such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default RateNon-Contributing Member (each, a “Shortfall Loan”).
7.3 3.6.4 Upon the making of a capital contribution Shortfall Loan by a Contributing Member to the Company Non-Contributing Member pursuant to Section 7.23.6.3, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of such Shortfall Loan shall: (i) be immediately due and eligible for repayment; (ii) bear interest until fully repaid at the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by lesser of: (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, Interest Rate plus one hundred fifty (150) basis points per annum compounded monthly; or (B) 300% upon the second maximum interest rate permitted by law compounded monthly; (iii) be payable from all distributions by the Company during the term of such failure Shortfall Loan which otherwise would be made to the Non-Contributing Member until the Shortfall Loan is repaid in full; and (Civ) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made be pre-payable by the Members (including the Additional Contributions received by the Company)Non-Contributing Member at any time, and (b) the without premium or penalty. The Non-Contributing Members' Interest Member shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated remain personally liable to the Contributing Members or Member for such Shortfall Loan amounts, together with accrued interest thereon. All payments made to continue re-allocating the Interests Contributing Member hereunder on account of a Shortfall Loan shall be applied first to payment of any accrued interest due under any Shortfall Loan and then to principal until all amounts due thereunder are paid in full.
3.6.5 If any Shortfall Loan is not repaid in full within the Noncontributing applicable deadline, the Contributing Member and Contributing Members as may, at any time thereafter (provided in the preceding sentence except that the percentage multiple Shortfall Loan has not then been repaid), elect to exercise the put or call rights, as the case may be, set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto6.2.4.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Kensington Capital Acquisition Corp.)
Additional Capital Contributions. 7.1 No (a) Each Member shall make Additional Capital Contributions in proportion to such Member's Capital Sharing Ratio, as may be obligated to make additional capital contributions to approved by the Company. If Members, for the Managing Member, with the concurrence of Members holding a majority in interest conduct of the Company's business, maintenance of its assets, and discharge of its liabilities. Investor's Capital Contribution Account and Capital Account, and the AIMCO Members' Capital Accounts, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth credited in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all any such Additional Capital Contributions made by such Member. From time to time as the Company or any Subsidiary requires funds to conduct its business, the Manager, with the written consent of the Members, shall notify the Members (including of the Additional Contributions received by amount of funds requested, the Company)use and purpose of such funds, and each Member's requested contribution amount.
(b) Notwithstanding anything to the Contributing Members' Interest contrary contained herein, Additional Capital Contributions shall be increased by adding thereto an amount equal to required for, and must be made in advance of undertaking, any of the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause following: (a) above. Upon the fourth and each subsequent failure any acquisition, development, redevelopment, or renovation of any Project, or making any capital expenditure that is outside of the Noncontributing Member parameters set forth in Section 4.3(d) hereof; (b) restoring a Project or portions thereof affected by a casualty or condemnation other than to make an Additional Contribution giving rise to its original condition (or as close thereto as is reasonably practicable); or (c) funding any Company, Subsidiary or Project reserves, other than the application Capital Reserve in accordance with Section 4.3(d) hereof. For avoidance of this Section 7.3doubt, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members except as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) Section 6.3 hereof, no Additional Capital Contribution shall be increased 100% for each failure of required unless the Noncontributing Member Members so agree to make an such Additional Contribution. An example of Capital Contributions.
(c) If the operation of Members agree to make Additional Capital Contributions under this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution6.2, is set forth in Schedule B attached hereto.
7.4 The obligations of or Section 6.3 hereof, then the Members contained in this Section 7 are personal and run only to shall make such Additional Capital Contributions within ten (10) Business Days after the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrarydate such notice is given.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Apartment Investment & Management Co)
Additional Capital Contributions. 7.1 No (a) In the event that the Company does not obtain a Third-party Loan on terms acceptable to the Executive Committee to fund a Shortfall, or any Member shall have made a Recourse Payment, either Member or the Executive Committee may (but is not obligated to) deliver a notice (each, a “Funding Notice”) to the Members setting forth the amount of the Recourse Payment or Shortfall (as the case may be) and a description in reasonable detail of the basis of such Recourse Payment or Shortfall (as the case may be), together with supporting calculations and relevant material documentation. The decision to send a Funding Notice may be obligated made by such Member or the Executive Committee without regard to any Member’s ability to pay its share of the Recourse Payment or Shortfall (as the case may be). Each Member shall have the right, but not the obligation, to make additional (or to cause one of its Affiliates to make on its behalf) capital contributions to the Company in an amount equal to its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within ten (10) Business Days after receipt of a Funding Notice (“Additional Capital Contributions”). If a Member (the “Non-Contributing Member”) fails to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) within the ten (10) Business Day period, any amounts funded (directly or indirectly) by the other Member (the “Contributing Member”) towards its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be) shall not be considered an Additional Capital Contribution, but rather, at such Member’s option, shall either (i) be refunded to the Contributing Member in its entirety, or (ii) be treated as a Priority Loan to the Company. If In the Managing event that the Contributing Member chooses to have the amount of Recourse Payment or Shortfall (as the case may be) funded by such Member treated as a Priority Loan, such Member shall also have the option, but not the obligation, to fund the portion of the Recourse Payment or Shortfall (as the case may be) that was not contributed by the Non-Contributing Member as a loan to the Company. Any such loans shall be made within ten (10) Business Days after the Contributing Member receives notice or acquires knowledge of the fact that the Non-Contributing Member has elected not to fund the full amount of its Percentage Membership Interest of the Recourse Payment or Shortfall (as the case may be). The outstanding principal of any loans made by a Contributing Member under this Section 4.4 shall accrue interest at a rate equal to eighteen percent (18%) per annum, compounded monthly (the “Priority Rate”), which interest shall be added to the principal (such principal and interest, together, the “Priority Loan”). All Priority Loans shall be repaid in accordance with Article 5; provided, however, that the Priority Loan of a Contributing Member shall be extinguished and be deemed paid in full upon the Non-Contributing Member funding an amount equal to its Percentage Membership Interest multiplied by the then outstanding amount of such Contributing Member’s Priority Loan, the proceeds of which shall be immediately distributed to the Contributing Member in accordance with Section 5.3(b) and the remaining unpaid balance of the Priority Loan shall be converted to and deemed to be an Additional Capital Contribution by the Contributing Member. Notwithstanding anything to the contrary contained herein, the Duke Member shall not have the right to send a Funding Notice during any period of time that the Duke Member has failed to pay a Rent Subsidy (as defined in the applicable Contribution Agreement) with respect to any Property.
(b) Subject to Section 4.4(a), any Additional Capital Contributions necessary to fund Building Expansions shall be payable in installments in accordance with the applicable construction schedule and construction agreement.
(c) In connection with each Subsequent Closing, the Duke Member may, in accordance with the terms of the Initial Contribution Agreement or the Qualified Future Asset Investment Agreement, in lieu of contributing any Subsequent Closing Property to the Company (or a Subsidiary), sell such Subsequent Closing Property to the Company (or a Subsidiary) for an amount in cash equal to the Agreed Value of such Subsequent Closing Property, and the CBRE Member and the Duke Member shall contribute an aggregate amount in cash equal to the Agreed Value of such Subsequent Closing Property, pro rata in accordance with their respective Percentage Membership Interests; provided, however, that there is no adverse tax consequence or other adverse financial consequence to the Company or its Members.
(d) The remedies provided in Section 4.4(a) with respect to the refund of any Additional Capital Contributions or the making of Priority Loans and in Section 4.3(b) (for failure of a non-paying Member to pay its share of Recourse Payments) are the only remedies available to a Contributing Member (or a paying Member, as applicable) with respect to any Non-Contributing Member’s (or non-paying Member’s, as applicable) failure to make an Additional Capital Contribution, and, except as otherwise expressly provided in this Section 4.4 or 4.3(b), no Member shall have any liability for any failure to make all or any portion of any Additional Capital Contribution requested to be made by such Member pursuant to Sections 4.4(a) and 4.4(b); provided, however, that notwithstanding the concurrence foregoing, each Member shall be and remain liable for the payment of Members holding a majority all amounts due from such Member pursuant to any guaranties or indemnities given to the Company (or any other Person) by such Member in interest connection with any Loan or any financing of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 (e) If a Member fails has a right to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member")a Priority Loan, then, so long as any other Member shall make his Additional Contribution as provided herein in the alternative, (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any i) the Contributing Member shall have the option (a) with right to contribute to the consent of a majority in interest capital of the Company the same amount that such Non-Contributing Members Member would have been entitled to contribute under Section 4.4(a) as a Priority Loan (i) to make a capital but any such contribution equal to the will not be treated as an Additional Contribution not made by the Noncontributing Member or Capital Contribution), (ii) to make any such contribution shall accrue a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest preferential return at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure Priority Rate and (Ciii) 400% upon notwithstanding the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 Section 5.1 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary, the amount of such contribution and the preferential return thereon shall be repaid to the Contributing Member at the same time that such Contributing Member would have received payments of principal and interest if such contribution had been a Priority Loan.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cb Richard Ellis Realty Trust)
Additional Capital Contributions. 7.1 No (a) Except for its Initial Capital Contribution and as otherwise expressly provided herein, no Member shall be obligated required to make commit or contribute any additional capital to the Company.
(b) Notwithstanding the foregoing, if, (i) either the Manager or the Medigus Member reasonably determines that additional capital contributions to the Company (“Additional Capital Contributions”) are required for the Company or any Subsidiary to fund Necessary Expenses, or (ii) the Members, by Unanimous Consent of the Members, approve the funding of Additional Capital Contributions as a Major Decision, then the Manager may (or shall, if requested by the Medigus Member pursuant to subsection (i) above) request in writing that the Members make Additional Capital Contributions to the Company. If the Managing MemberManager makes such request, with the concurrence Members shall contribute such Additional Capital Contributions within ten (10) Business Days after the date of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days receipt of notice of such requirement, each the request for the Additional Capital Contribution. All Additional Capital Contributions shall be funded thirty percent (30%) by the Medigus Member may, but shall not be obligated to, contribute to and seventy percent (70%) by the Company his Additional ContributionZIG Member.
7.2 (c) If any Member does not fund its share of an Additional Capital Contributions requested pursuant to Section 4.3(b) above within ten (10) Business Days after the date of receipt of notice of the request (such Member, a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing “Non-Contributing Member"”), thenthen the other Members who have funded their share of the Additional Capital Contribution (each, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "a “Contributing Member"), any Contributing Member shall have ”) may elect to fund its share of all amounts requested to be funded by the option (a) with the consent of a majority in interest of the Non-Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each loan by such Contributing Member or its Affiliate to the Non-Contributing Member (a “Member Loan”). Each Member Loan shall be permitted deemed a loan to participate the Non-Contributing Member followed by a Capital Contribution in proportion the amount of such Member Loan by the Non-Contributing Member to their respective Intereststhe Company. All loans made pursuant to this Section 7.2 Each Member Loan shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount rate equal to the percentage equivalent lesser of twelve percent (12%) per annum or the quotient maximum rate of (i) the Additional Contribution not made interest permitted by the Noncontributing Applicable Law. Any distributions otherwise payable to a Non-Contributing Member giving rise to application of under this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest Agreement shall be increased by adding thereto an amount equal applied first to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure repayment of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company Loans made on its behalf and the Members and may not be enforced Non-Contributing Member shall receive no distributions until such Member Loans owed by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryit are paid in full together with interest accrued thereon.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property, the Company, or its subsidiary. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member’s then current Percentage Interest. Such additional Capital Contributions 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) If a Member (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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty percent (20%) per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, 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 1 At closing of the acquisition of the Property, $372,500 shall be added to the required equity for closing and each Member shall be responsible for funding its pro-rata share of such amount at the closing as part of its Initial Capital Contribution according to its Percentage Interest; provided, C▇▇▇▇▇▇’▇ required Initial Capital Contribution shall be net of the credit amount provided in Section 7.1 above (5.1. the "Noncontributing Member"), then, so long as making of any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement time or both, would be in default) in any material respect under any loan, indenture, mortgage, non-residential 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member If the Board of Directors determines that the Company requires additional capital to defray expenses of the Company or to pursue new investments or capital expenditures, the Board of Directors shall be obligated to notify all Members of the amount of additional capital required, and one or more of the Members may, but shall have no obligation to, make additional Capital Contributions in such amounts as they may agree, or if they cannot agree, each contributing Member may make contributions up to an amount determined by multiplying the requested capital contributions amount by a fraction, the numerator of which is the number of Membership Units owned by such contributing Member and the denominator of which is the aggregate number of Membership Units owned by all contributing Members. If the existing Members do not agree to provide all of the requested additional capital, then the Board of Directors may raise such additional capital from other parties in any manner determined by the Board of Directors in its sole discretion, including the issuance of new Membership Units (and the creation and issuance of new classes of Membership Units) and admitting the Persons acquiring such new Membership Units as Members of the Company. If In conducting such an offering, the Managing MemberBoard of Directors may cause this Agreement to be amended in any manner it deems necessary to implement the terms of such an offering, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purposeits sole discretion, including, without limitation, those purposes creating new Membership Unit Class Addenda, altering the provisions of Section 4.2, and altering the rights of the Members and Membership Units to vote and receive distributions as set forth in Article 5this Agreement, then within fifteen provided that (15i) days such amendment does not alter the relative rights and obligations among the persons who are Members immediately before such amendment or among then-existing Membership Unit classes; (ii) such amendment does not increase the obligation of notice of such requirement, each any Member may, but shall not be obligated to, to contribute capital to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionor create any personal liability or any Member, without in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with case obtaining the consent of a majority Majority in interest of the Contributing Members (i) to make Interest or a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate Class Majority in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing affected Members shall be adjusted or Membership Unit classes, as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company)applicable, and (biii) the Contributing Members' Interest provisions of Section 8.7 shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause observed. COMPANY AGREEMENT (aPage 20 of 48) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3APCLARK, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.LLC
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Management Committee from time to time as and to the extent capital is necessary to effect an investment. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by thirty four and one half percent (34.5%) in the case of SOIF, three percent (3.0%) in the case of BR MDA Investors and sixty two and one half percent (62.5%) in the case of BEMT. Such additional Capital Contributions 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) If a Member (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 Members, provided that they have each 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 Members (each such loan, a “Default Loan”). The Capital Account of the Defaulting Member shall be obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Members. If Any Default Loan shall bear interest at the Managing Memberrate of eighteen (18%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest rate permitted by applicable laws (the “Default Loan Rate”), and shall be payable by the Defaulting Member on demand from the non-failing Members and from any Distributions due to the Defaulting Member hereunder. Interest on a Default Loan to the extent unpaid, shall determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of such Default Loan, the Defaulting Member hereby pledges, assigns and grants a security interest in its Interest to the non-failing Members and agrees to promptly execute such documents and statements reasonably requested by the non-failing Members to further evidence and secure such security interest. Any advance by the non-failing Members on account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 Members, 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; or
(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 Members and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, the Interest of the Noncontributing Member and the Contributing Members 5.2(b)(2) shall not be adjusted treated as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional a Capital Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Defaulting Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property, the Company, or its subsidiary. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member’s then current Percentage Interest. Such additional Capital Contributions 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) If a Member (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 At closing of the acquisition of the Property, $697,900.00 shall be added to the required equity for closing and each Member shall be obligated responsible for funding its pro-rata share of such amount at the closing as part of its Initial Capital Contribution according to make additional capital contributions to the Company. If the Managing Memberits Percentage Interest; provided, with the concurrence of Members holding a majority in interest ▇▇▇▇▇▇▇’▇ required Initial Capital Contribution shall be net of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth credit amount provided in Article 5, then within fifteen Section 5.1.
(151) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to advance to the Company his Additional Contribution.
7.2 If 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 fails (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 make his Additional Contributiona 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, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of any 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement time or both, would be in default) in any material respect under any loan, indenture, mortgage, non-residential 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions (a) In addition to the Company. If the Managing Member, with the concurrence of Members holding a majority initial Capital Contributions described in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirementSection 8.1, each Member may, but shall not be obligated to, contribute to the Company his upon demand by the Administrative Member, on no less than thirty (30) days notice, such additional capital in proportion to their respective Percentage Interests (“Additional ContributionCapital Contributions”) as may be required: (1) to pay operating costs of the Company and/or the Project Entities which are not funded out of the capital (including Contribution Loans) and earnings of the Company and/or the Project Entities; (2) to make payments on optional loans under Section 8.3 which are not funded out of the capital or earnings of the Company and/or the Project Entities; or (3) for other purposes as the Administrative Member may determine to be in the best interests of the Company and/or the Project Entities. Additional Capital Contributions pursuant to this Section 8.2 shall be made by the Members on the thirtieth (30th) day following receipt of notice from the Administrative Member of such Additional Capital Contributions (the “Contribution Notice”). The provisions of this Section 8.2(a) shall not create any rights in any third party. No person or Entity shall have the right to enforce this Section 8.2 except the Company.
7.2 (b) If a Member fails to make his all or any part of any Additional ContributionCapital Contribution required by Section 8.2(a) (“Noncontributing Member”), in whole or in part, as required in Section 7.1 above the other Member (the "Noncontributing “Contributing Member"), then, so long as any other Member ”) shall make his an Additional Capital Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution an amount equal to the Additional Capital Contribution not made by the Noncontributing Member or (ii) the “Matching Contribution”), and may, but is not required to, lend to make a Default Loan the Company an amount equal to the amount of such Additional Capital Contribution not made contributed by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default“Contribution Loan”). In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 A Contribution Loan shall bear interest at the Default Rate.
7.3 Upon rate of fifteen percent (15%). At any time during the making term of a capital contribution to the Company pursuant to Section 7.2Contribution Loan, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted entitled to contribute, as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an Additional Capital Contribution, an amount equal to the percentage equivalent principal and interest due on the Contribution Loan (“Delayed Additional Capital Contribution”), in which case, the Company shall immediately repay the Contribution Loan. The principal portion of the quotient of (i) Delayed Additional Capital Contribution only shall be added to the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure contributor's Invested Capital and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company)Account, and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth Percentage Interests and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Membership Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure as though the original contribution was made when called for.
(c) In the event that a Member makes an Additional Capital Contribution in excess of the Noncontributing amount required pursuant to this Section 8.2, such excess amount shall be returned to such Member to make an Additional Contribution. An example within ten (10) business days of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretocontribution date.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Emeritus Corp\wa\)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions (a) At any time after the Effective Date, the Board of Managers may unanimously, in its reasonable discretion, upon written notice to the CompanyMembers ("Call Notice"), request additional Capital Contributions (which additional Capital Contributions specifically exclude any additional Capital Contributions required pursuant to any applicable Capital Commitments), if any, that the Company requires. If the Managing Member, with the concurrence of Members holding a majority in interest Upon receipt of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirementCall Notice, each Member mayshall have the right, but not the obligation, to contribute his, her or its pro rata share of the total additional Capital Contributions identified in the Call Notice based on its respective Percentage Interest (the "Additional Capital"). Each Member shall not be obligated to, contribute have thirty (30) days from the date the Call Notice is delivered to send a written notice to the Company his Board of Managers stating whether such Member elects to contribute the Additional Contribution.
7.2 Capital or a portion thereof (in which case the amount of such portion shall be specified). If a Member fails to elect in writing to make his any such contribution within such thirty (30) day period, then such Member shall be deemed to have elected not to make such contribution. A Member shall have ten (10) Business Days from the delivery of the additional Call Notice to make its contribution.
(b) If any Member does not contribute the full amount of Additional Contribution, in whole or in part, as required in Section 7.1 above Capital (the a "Noncontributing MemberDeficiency"), then, so long as any other then such Member shall make his be referred to herein as a "Non-Contributing Member" and the other Members who are not the Non-Contributing Member, and who have contributed all of the Additional Contribution Capital as provided herein (each such Member making his Additional Contribution being hereinafter is entitled to contribute as set forth in a Call Notice, shall be referred to herein as the "Contributing MemberMember(s)"), any and each such Contributing Member shall have may further contribute such portion of the option (a) with Deficiency in proportion to the consent relative Percentage Interests of a majority in interest all Contributing Members electing to contribute any portion of the Deficiency. In the event all of the Contributing Members (i) do not elect to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result contribute their respective portions of the Noncontributing Member's default. In Deficiency, then the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account contributing its portion of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest Deficiency may contribute all of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) Deficiency by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause contributing the remaining Interest balance of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretosuch Deficiency.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers from time to time as and to the extent capital is necessary to effect an investment. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by five (5%) percent in the case of SOIF III and ninety-five (95%) percent in the case of BEMT. Such additional Capital Contributions 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) If a Member (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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty (20%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Capital Account by one and one-half of the 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by shall be returned within ten (A10) 200% upon days with interest computed at the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property, the Company, or its Subsidiaries. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member’s then current Percentage Interest. Such additional Capital Contributions 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) If a Member (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 At closing of the acquisition of the Property, $603,750 shall be added to the required equity for closing and each Member shall be obligated responsible for funding its pro-rata share of such amount at the closing as part of its Initial Capital Contribution according to make additional capital contributions to the Company. If the Managing Memberits Percentage Interest; provided, with the concurrence of Members holding a majority in interest C▇▇▇▇▇▇’▇ required Initial Capital Contribution shall be net of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth credit amount provided in Article 5, then within fifteen Section 5.1.
(151) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to advance to the Company his Additional Contribution.
7.2 If 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 fails (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 make his Additional Contributiona 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, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of any 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement time or both, would be in default) in any material respect under any loan, indenture, mortgage, non-residential 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated a. If, at any time and from time to make additional capital contributions to time during the Company. If the Managing Member, with the concurrence of Members holding a majority in interest term of the Company, the Investment Committee determines that the Company requires additional capital in order for the Company to fund one or more Project Entities to acquire one or more Shopping Centers, and such funds are not otherwise available from third party financing or Company reserves or cash balances, then, and in that event, each Member shall determine there (and hereby agrees to) contribute such required additional capital to the Company, pro rata, in accordance with its respective Applicable Percentages. Investcorp, on the one hand, and Ramco, on the other, shall only be a required to contribute to the capital of the Company pursuant to this Section 2.02a an aggregate maximum amount of Thirty-seven Million Five Hundred Thousand Dollars ($37,500,000.00) (the "Maximum Required Amount Aggregate Contribution")(which amount shall include, for any Company purposepurposes of this Section 2.02a hereof, including, without limitation, those purposes the initial capital contribution of each Member as set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a 2.01 hereof and all additional capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans contributions made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members 2.02a). The Maximum Required Aggregate Contribution shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members pro rata based on each Member's respective Applicable Percentage pursuant to a Capital Call Notice (including the Additional Contributions received by the Company), and (bas hereinafter defined) the Contributing Members' Interest shall be increased by adding thereto an amount equal sent to the percentage by which the Noncontributing Member's Interest was decreased Members pursuant to clause (a) abovethe provisions of Section 2.02c hereof. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members Notwithstanding anything contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary., the Members shall not be required to contribute in the aggregate more than thirty percent (30%) of the acquisition costs of any one Shopping Center unless both Members agree otherwise. In calculating the maximum Thirty-seven Million Five Hundred Thousand Dollars ($37,500,000.00) capital contribution
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ramco Gershenson Properties Trust)
Additional Capital Contributions. 7.1 No Member If funds are required for any expenditure of the Company necessary for the operation of the Company and/or any expansion of the Company as Approved by the Board, the Company shall be obligated seek such funds in the following order of priority: (i) cash generated by the operations of the Company; (ii) loans from Triad Sub or any Triad Affiliate to the extent available and on terms mutually agreeable; and (iii) commercial loans from third parties on terms mutually agreeable. If the Company has made commercially reasonable efforts to obtain the needed funds as set forth above and has been unable to do so, the Manager, upon the Approval of the Board, shall have the right to request that the Members make additional capital contributions (“Additional Capital Contributions”) (pro rata in accordance with each Member’s Sharing Percentage) to the Company. If the Managing MemberManager, with as Approved by the concurrence of Members holding Board, makes such a majority in interest request, no Member shall be required to make such Additional Capital Contribution, provided that if any Member elects not to make a portion or all of the CompanyAdditional Capital Contribution (a “Noncontributing Member”), the other Members (the “Contributing Members”) shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member mayhave the right, but shall not be obligated tothe obligation, to contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent amount of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by cash that the Noncontributing Member or Members failed to contribute. They Members shall have thirty (ii30) days after the Manager’s request in which elect to Make or not make a Default Loan equal to such Additional Capital Contributions. Effective as the Additional Contribution not made by the Noncontributing Member or end of such thirty (b30) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2day period, the Interest of the Noncontributing Member and the Contributing Members Members’ Sharing Percentages shall be adjusted as follows:
(a) the Noncontributing : Each Member's Interest ’s Sharing Percentage thereafter shall be decreased (but not below zero) by subtracting therefrom an amount equal to a fraction (converted to a percentage), the percentage equivalent numerator of which is the quotient amount of (i) such Member’s Capital Account and the Additional Contribution not made by the Noncontributing Member giving rise to application denominator of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) which is the aggregate amount of all Members’ Capital Contributions made Accounts. The number of Units held by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest each Member shall be increased by adding thereto an amount equal adjusted automatically to reflect any change in the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of Members’ Sharing Percentages under this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties4.2. No creditor person other than a Member or Manager of the Company may rely on the foregoing provisions of this Article 7 or enforce any other provision of this Operating Agreement to make any contributions or returns relating to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrarypayment of additional capital.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Community Health Investment CORP)
Additional Capital Contributions. 7.1 No (a) If the Board of Managers determines, in its sole discretion, (i) at any time that the Members' Commitments have not been fully utilized, for any purpose related to the Credit Enhancement Business other than an Original Commitment Permitted Purpose or a Special Commitment Permitted Purpose and (ii) from and after the date on which the Members' Commitments have been fully utilized, for any purpose related to the Credit Enhancement Business (PROVIDED that any capital contributions to be made by the Company to any Subsidiary of the Company shall be permitted only if such Subsidiary is a Subsidiary of the Company in which no interest therein is owned by CharterMac or its Affiliates (other than the Company)) that the Company requires additional capital contributions (the "ADDITIONAL CAPITAL"), then the Board of Managers or its designee shall have the right (but shall not be obligated notwithstanding any fiduciary duty it may have to the Company, the Members or the creditors of the Company) to give notice to the Members in writing (the "CALL NOTICE") of (i) the total amount of Additional Capital required and each Member's pro rata share thereof, (ii) the reason the Additional Capital is requested, and (iii) the date each Member's share of the Additional Capital is due and payable, which date shall be not less than 45 business days after the notice has been given.
(b) Each Member shall have the right to fund its pro rata portion of the amount of each request for Additional Capital, but no Member shall be obligated to make additional capital contributions fund any such request. If a Member elects, at its sole option, to not contribute the Additional Capital requested in clause (a) above prior to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest expiration of the Companyapplicable due date (each Member that actually funded its pro rata share of the requested Capital Contribution is referred to in this clause (b) as a "CONTRIBUTING MEMBER"), the Board of Managers shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of give prompt notice of such requirement, each Member may, but shall election and the amount of the capital contribution not be obligated to, contribute funded to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being amount is hereinafter referred to as the "Contributing MemberDeclined Contribution")) and within 30 business days after the date of such notice, any Contributing Member shall have may elect to fund the option Declined Contribution.
(ac) with If, at any time, the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Special Member's default. In the event that more Percentage Interest is less than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
5% (a) the Noncontributing Member's which Percentage Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application determined for purposes of this Section 7.3 multiplied clause (c) excluding from the denominator thereof Units owned by (APersons other than the Special Member, the Charter Member and their respective Affiliates) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all the Capital Contributions made by the Members (including Special Member is less than $50,000,000, the Additional Contributions received by Special Member shall no longer have the Companyright to appoint a member of the Board of Managers. If the Special Member loses its right to appoint a member to the Board of Managers, but, thereafter, its Percentage Interest or aggregate capital contribution exceeds either of such levels, its right to appoint a member of the Board of Managers shall be reinstated, for so long as either of such levels are met. If the Special Member does not have the right to appoint a member of the Board of Managers pursuant to this Section 4.2(c), and then the Company shall permit a representative of the Special Member (bthe "OBSERVER") to attend each meeting of the Contributing Members' Interest Board of Managers (in person or via telephone), in a non-voting capacity. The Company shall be increased by adding thereto an amount equal send to the percentage by which Observer the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure notice of the Noncontributing Member to make an Additional Contribution giving rise time and place of each such meeting in the same manner and at the same time as it shall send such notice to the application of this Section 7.3, a majority-in-interest members of the Contributing Members Board of Managers. The Company shall have also provide the optionObserver with copies of all reports, exercisable minutes, consents and other information at the same time and in their sole discretion, the same manner as such information is provided to cause the remaining Interest members of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests Board of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoManagers.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No Should the Board of Managers determine by Board of Managers Action that it is desirable to raise additional funds through capital contributions ("Additional Capital Contributions")., then the following provisions shall apply:
a. The Company shall issue a written notice of capital request ("Notice of Capital Request") to each Member shall be obligated to make contribute additional capital contributions to the Company. If The Notice of Capital Request shall include the Managing Member, with the concurrence following information:
i. The total amount of Members holding a majority in interest capital requested from all of the CompanyMembers ("Total Capital Request");
ii. Each Member's share of the Total Capital Request, shall determine there which shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days determined by multiplying the Total Capital Request by the Membership Interest of notice of such requirement, each Member may("Member Capital Contribution"); and
iii. The date on or before which the Member Capital Contribution shall be due, but which date shall not be obligated to, contribute to less than thirty (30) days from the Company his Additional Contributiondate of the Notice of Capital Request.
7.2 If a b. Should any Member fails neglect, fail or refuse to make his Additional Contribution, in whole or in part, as required in Section 7.1 above timely contribute any portion of such Member's Capital Contribution (the "Noncontributing Delinquent Member"), then, then the Company shall so long as any notify the other Members ("Member shall make his Additional Notice") and the other. Members who have paid their Member's Capital Contribution as provided herein in full (each such Member making his Additional Contribution being hereinafter referred to as "Contributing MemberNon-Delinquent Members"), any Contributing Member ) shall have the option to contribute the Delinquent Member's Capital Contribution on a pro-rata basis (a) in accordance with the consent then respective Membership Interest of a majority in interest of the Contributing Members (i) to make a capital contribution equal each other Non-Delinquent Member as compared to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent total Membership Interests of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's defaultall Non-Delinquent Members). In the event that more than one Contributing any Non-Delinquent Member desires neglects, fails or refuses to make an Additional Contribution, or is permitted to make a Default Loan, on account contribute its pro-rata share of the Noncontributing Delinquent Member's Capital Contribution within thirty (30) days of its receipt of the Member Notice, each then all other Non-Delinquent Members shall have the right to contribute the remaining deficiency in the Delinquent Member's Capital Contribution on a pro-rata basis (as to all such Contributing Member other Non-Delinquent Members and in the manner hereinabove provided); which procedure shall be permitted repeated until the Delinquent Member's Capital Contribution is satisfied or all Non-Delinquent Members fail to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Ratecontribute any additional capital.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest c. The Membership Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
to reflect paid in Initial and Additional Capital Contributions (a"Aggregate Capital Contributions") (any adjustment shall not include an adjustment for the Noncontributing Member's initial $2,000,000 line of credit referred to in Section 6.05), so that the Membership Interest of each Member shall be decreased (but not below zero) by subtracting therefrom equal an amount equal to determined by the percentage equivalent following formula: Aggregate Capital Contributions of Member ---------------------------------------------- X 100 Aggregate Capital Contributions of All Members For purposes of the quotient adjustment of (i) Membership Interest as provided herein, each Member is hereby constituted and appointed the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure true and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majoritylawful attorney-in-interest fact for each of the Contributing Members shall have the optionother Members, exercisable in their sole discretionand any Member Transferee, with full power of substitution, to cause act in the remaining name, place and stead of each other Member, in order to effectuate the adjustment to each Membership Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member herein and execute any and all instruments, assignments and amendments to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations Agreement on behalf of the Members contained which may be necessary or appropriate in this Section 7 are personal connection therewith. The aforesaid power of attorney is coupled with an interest and run only shall be and remain irrevocable and shall not be affected by the death or incompetence of the principal and, in addition, shall be effective to the benefit of fullest extent permitted pursuant to Ind. Code ss. 30-5-1-1, et. seq.
d. Additional funds may also be obtained by the Company and the Members through borrowings from a Member or other parties which borrowings may be secured or unsecured and may not bear interest and shall be enforced by any third parties. No creditor of subject to the other terms and provisions as are acceptable to the Company may rely on the foregoing provisions by Board of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryManagers Action and such lender.
Appears in 1 contract
Additional Capital Contributions. 7.1 (a) No Member shall be responsible for, or obligated to make additional provide for, capital contributions to requirements and expenses of the Company. If Company in excess of their Initial Capital Contribution.
(b) Upon the Managing Member, with the concurrence vote of Members holding a majority in interest eighty-five percent (85%) of the Membership Interests of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, the Manager may request Additional Capital Contributions from each Member mayby way of written notice stating the amount of additional funds required, but shall not the purpose therefore, and the date upon which Additional Capital Contributions may be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing made by each Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing . Each Member shall have the option (a) right to make their pro rata share of the Additional Capital Contribution in accordance with their Membership Interest at the consent time specified in such notice. If any Member does not make the full amount of their share of a majority in interest requested Additional Capital Contribution within ten (10) days after the expiration of the Contributing Members time specified in such notice, the Manager shall send a written notice to each Member specifying the amount not contributed (i) the “Non-Contribution Notice”). Each Member shall have the right to make the Additional Capital Contribution requested from the non-contributing Member on a capital contribution equal pro rata basis in accordance with their Membership Interests or as they otherwise agree by sending a written notice to the Managers within (5) days of the Member’s receipt of the Non-Contribution Notice indicating the Member’s interest to contribute a portion of the non-contributing Member’s Additional Capital Contribution not (the “Portion Notice”). The value of the Membership Interest for the Additional Capital Contribution made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted based on the lower of the Company’s Net Book Value or its fair market value as reasonably determined by the Board in its sole discretion immediately preceding the Additional Capital Contribution. If the Board determines that the Company needs additional funds, but determines not to participate in proportion request Additional Capital Contributions, the Board may cause the Company to their respective Interests. All loans made pursuant borrow such funds from any Person, including any Member, upon such terms and conditions as may be agreed to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution time. No such loan to the Company pursuant to Section 7.2, the Interest of the Noncontributing from a Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal deemed to the percentage equivalent of the quotient of (i) the Additional constitute a Capital Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and shall not increase the Members and may not be enforced by any third parties. No creditor Capital Account of the Company may rely on Member making the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryloan.
Appears in 1 contract
Additional Capital Contributions. 7.1 No Member shall be obligated (a) The Members acknowledge that the Company may need additional funds from time to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority time in interest excess of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those amounts contributed by the Members pursuant to Section 3.1 in order to accomplish the purposes set forth in Article 2. In the event that the Manager determines in its reasonable discretion that additional capital is required, it shall send a written notice (the “Call Notice”) to each Member stating the aggregate amount of the additional capital required (the “Capital Call”) and the purpose for which such additional capital is required. Each Member shall within five (5) Business Days from the date of the Call Notice (the “Call Period”) contribute to the Company in cash its Ratable Share of the Capital Call.
(b) If a Member fails to contribute an amount (the “Default Amount”) equal to its Ratable Share of the Capital Call within the Call Period (the “Failing Member”), and if any other Member (the “Non-Failing Member”) has made its entire required contribution, then, subject to the provisions of Section 3.2(d), each of the Non-Failing Members may at the Non-Failing Member’s option, but need not, (i) elect to withdraw from the Company its most recent Capital Contribution made pursuant to Section 3.2(a), in which case the Company shall promptly repay the amount of such withdrawn contribution to the Non-Failing Member, or (ii) advance the amount of the additional Capital Contribution in an amount equal to the Default Amount (a “Default Capital Contribution”). Each Non-Failing Member shall have the right to make the Default Capital Contribution in an amount equal to the Default Amount multiplied by the Non-Failing Member’s Ratable Share divided by the sum of the Ratable Shares of all Non-Failing Members that agree to make such Default Capital Contribution, or in such other proportion as the Non-Failing Members shall agree. The payment of a Default Capital Contribution shall not modify the Percentage Interests of the Members.
(c) In the event any Non-Failing Member elects pursuant to Section 3.2(b)(ii) to make a Default Capital Contribution to the Company, then the Default Capital Contribution made by such Non-Failing Member shall be entitled to a preferred return (the “Default Preferred Return”) on such Non-Failing Member’s Default Capital Contribution Balance at a rate of fifteen percent (15%) per annum, compounded monthly.
(d) If the Manager proposes that the Company acquire a new Property (an “Acquisition”) or develop any of the Properties identified on Exhibit F attached hereto (a “Development”), the Manager shall send a notice (an “Acquisition Notice” or “Development Notice”, as the case may be) to Colonial describing the Acquisition or Development, as the case may be, and providing a good faith estimate of the anticipated costs and possible sources and terms for the required equity and/or debt financing. Colonial shall, within fifteen (15) days from the date of notice of the Acquisition Notice or Development Notice, elect whether or not to participate in such requirementAcquisition or Development. If Colonial does not timely elect in writing to participate in such Acquisition or Development, each Member mayit shall be deemed to have declined to participate in the Acquisition or Development. If Colonial elects to participate in an Acquisition or Development, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member Manager shall have the option right to cause the Company to take such actions as are necessary to consummate the Acquisition or Development (whether or not such actions are consistent with the terms of the Acquisition Notice or Development Notice) and DRA and Colonial shall each be required to contribute its Ratable Share of each Capital Call in connection with the Acquisition or Development within the Call Period (whether or not such capital requirements are consistent with the terms of the Acquisition Notice or Development Notice). If Colonial elects not to participate in an Acquisition or Development, then (a) with in the consent case of a majority in interest an Acquisition, DRA or any Person designated by DRA shall have the right to acquire the property which was the subject of the Contributing Members (i) Acquisition Notice and neither the Company, Colonial nor any Colonial Person shall have any rights or liabilities with respect to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or such property and (b) in the case of a Development, DRA shall have the authority, subject to any contractual restrictions, to cause the Company (or the applicable subsidiary of the Company) to transfer the Property or the Company’s direct or indirect interest in such Property, as determined by DRA, to a Person designated by DRA and, in such event, DRA shall pay to Colonial an amount equal to fifteen percent (15%) of the value of the Company’s interest allocated to such Property as of the date of this Agreement, less any debt encumbering the Property or the Company’s interest therein and neither the Company, Colonial nor any Colonial Person shall have any further rights or liabilities with respect to such Property and its development arising from and after such transfer. Colonial acknowledges and agrees that it will not have any rights or claims against the Company in connection with such Acquisition or Development, whether or not the Acquisition or Development was consummated in a manner consistent with the unanimous written consent Acquisition Notice or Development Notice. In the event the transfer of each Contributing Memberthe Property or the Company’s interest in such Property is not permitted due to restrictions in an agreement encumbering such Property or the Company’s interest in such Property, to declare the Company terminated shall take all reasonable steps available to treat the Company’s interest as a result of having been transferred to the Noncontributing Member's defaultPerson designated by DRA. In the event that more than one Contributing any Member desires fails to make contribute its Ratable Share of a Capital Call in connection with an Additional ContributionAcquisition or Development by the Company, or is permitted and such failure continues for thirty (30) days after notice by the Manager, the non-defaulting Member shall have the right, in addition to make a Default Loanany other rights available to the non- defaulting Member, on account to cause the Company to transfer for no consideration all of the Noncontributing Company’s right, title and interest in and to such Acquisition or Development to any Person designated by such non-defaulting Member, each such Contributing and neither the Company or the defaulting Member shall be permitted have any rights or liabilities with respect to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Ratesuch Acquisition or Development.
7.3 Upon (e) The Company shall not issue any additional Membership Interests, other than Preferred Units issued in accordance with the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application provisions of this Section 7.3 multiplied by (A) 200% upon the first failure including, Series A Preferred Units and Series B Preferred Units to correspond to a class of the Noncontributing Member preferred stock that DRA may issue to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by accommodation stockholders in exchange for a cash contribution to the Company), without the consent of each Member. In the event that the Manager determines that it is in the best interests of the Company to issue one or more series of Preferred Units that entitle the holder to receive non-participating dividends at a fixed rate in preference to the Common Units held by the Members and (b) the Contributing Members' Interest shall be increased by adding thereto to receive an amount in liquidation equal to the percentage by which amount paid to purchase such Preferred Units plus accrued and unpaid dividends in preference to the Noncontributing Member's Interest was decreased pursuant distributions payable to clause the Members, without any other participation rights, the Manager shall first afford each Member the opportunity to subscribe for its Ratable Share (a) above. Upon the fourth and each subsequent failure any portion of the Noncontributing Ratable Share of any other Member that does not elect to make an Additional Contribution giving rise subscribe to its full Ratable Share) of such additional Preferred Units on the application of this Section 7.3same terms as the Manager proposes to offer such Preferred Units to such other Person, by furnishing each Member with a majority-in-interest notice of the Contributing Members terms of such proposed issuance and the proposed use of the proceeds thereof; provided, however, that the Manager shall have the optionright to authorize and issue Series A Preferred Units and Series B Preferred Units without offering the Members an opportunity to subscribe for such Preferred Units. The Members shall, exercisable within fifteen (15) days after the date of such notice, elect whether or not to subscribe for such Preferred Units. If a Member does not timely elect in their sole discretionwriting to subscribe, it shall be deemed to have declined to subscribe and the Manager shall be entitled to cause the remaining Interest of Company to issue such Preferred Units substantially on the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple terms set forth in clause such notice within one hundred and twenty (i120) (C) shall be increased 100% for each failure days after the date of such notice without again complying with the provisions of this Section. Upon consummation of the Noncontributing Member UPREIT Restructuring and the Merger Transactions, the Company has issued to make an Additional Contribution. An example DRA 2,990,000 units of 81/2% Series A Cumulative Redeemable Preferred Membership Units (“Series A Preferred Units”), the operation terms and conditions of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is which are set forth in Schedule Attachment G attached hereto and made part hereof, and has reserved for issuance Series B attached heretoCumulative Redeemable Preferred Membership Units (“Series B Preferred Units”).
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Colonial Properties Trust)
Additional Capital Contributions. 7.1 No (a) Except as provided in Section 2.02(b) below, no Member shall be required to contribute additional capital to the Company.
(b) If the Board of Managers determines, in accordance with the provisions of Section 5.04 hereof, that the Company requires additional capital beyond the Capital Contributions set forth in Section 2.01 hereof, then the Board of Managers shall have the power to and is authorized to deliver a Capital Contribution notice to the holders of the Preferred Units, which notice shall include a contribution date ("Contribution Date") (which date shall not be less than ten (10) business days following the effective date of such Notice) upon which the holders of the Preferred Units shall be obligated to make additional capital contributions contribute to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest capital of the Company, shall determine there shall be a Required Amount for any Company purposein cash, including, without limitation, those purposes set forth the amount required by the Board of Managers and in Article 5, then within fifteen (15) days proportion to the number of notice of such requirement, Preferred Units held by each Member mayof the Company; provided, but however, that the holders of the Preferred Units shall not be obligated toto contribute aggregate additional Capital Contributions pursuant to this Section 2.02(b) in excess of Eight Million Dollars ($8,000,000) in the aggregate (with the result that the aggregate Capital Contributions of the holders of the Preferred Units, contribute in addition to the Company his Additional Contribution.
7.2 If a Member fails Initial Capital Contribution made pursuant to make his Additional ContributionSection 2.01(b) above, shall in no event exceed Ten Million Dollars ($10,000,000) in the aggregate. Notwithstanding the foregoing, in whole or in part, as required in Section 7.1 above the event that any holder of a Preferred Unit (the "Noncontributing Non-Contributing Member") fails to contribute all or any portion of any additional capital such Member is required to contribute pursuant to any applicable contribution notice, then, in such event, the Board of Managers shall deliver a notice of delinquent contribution within ten (10) business days following the Contribution Date (the "Notice of Delinquent Contribution"), then, so long as any other Member in such event, the holders of Preferred Units shall make his Additional thereafter for a period of thirty (30) days following the date of the Delinquent Contribution as provided herein Notice have the right to require the Company to refund in full the contributions made by the contribution Members in response to the Contribution Notice.
(each c) If the Board of Managers determines, in accordance with the provisions of Section 5.04 hereof, that the Company requires additional capital beyond the Capital Contributions set forth in Section 2.01 hereof, and in addition to or in lieu of the obligation of holders of Preferred Units to contribute additional Capital pursuant to Section 2.02(b) above, then in such Member making his Additional Contribution being hereinafter referred event but subject to as "Contributing Member")Section 2.03 of this Agreement, any Contributing Member the Board of Managers shall have the option power to and is authorized, subject to any limitations prescribed by law, to provide for the issuance of such additional interests from time to time (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal including, but not limited to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent issuance of each Contributing Memberadditional authorized, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contributionbut unissued, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the CompanyUnits), and (b) to establish from time to time the Contributing Members' Interest shall powers, preferences and rights with respect to such interests and any qualifications, limitations or restrictions thereof as the Board of Managers may determine to be increased by adding thereto an amount equal to appropriate under the percentage by which circumstances, and the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure Board of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members Managers shall have the option, exercisable in their sole discretion, power and authority to cause the remaining Interest of the Noncontributing Member this Agreement to be forfeited amended to reflect the terms and allocated to the Contributing Members or to continue re-allocating the Interests conditions of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company such interests and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryissuance thereof.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property, the Company, or its subsidiary. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member’s then current Percentage Interest. Such additional Capital Contributions 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. 1 At closing of the acquisition of the Property, $250,000 shall be added to the required equity for closing and each Member shall be obligated responsible for funding its pro-rata share of such amount at the closing as part of its Initial Capital Contribution according to its Percentage Interest; provided, ▇▇▇▇▇▇▇’▇ required Initial Capital Contribution shall be net of the credit amount provided in Section 5.1.
(b) If a Member (a “Defaulting Member”) fails to make additional capital contributions to a Capital Contribution that is required as provided in Section 5.2(a) within the Company. If time frame required therein (the Managing amount of the failed contribution and related loan shall be the “Default Amount”), the other Member, with provided that it has made the concurrence of Members holding a majority Capital Contribution required to be made by it, in interest addition to any other remedies it may have hereunder or at law, shall have one or more of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen following remedies:
(151) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to advance to the Company his Additional Contribution.
7.2 If 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 fails (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 make his Additional Contributiona 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, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of any 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement time or both, would be in default) in any material respect under any loan, indenture, mortgage, non-residential 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with In addition to the consent of a majority in interest initial Capital Contributions of the Contributing Members, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Membership Interests, as determined by the Board from time to time to be reasonably necessary to pay any operating, capital or other expenses relating to the Business (such additional Capital Contributions, the "Additional Capital Contributions"), provided, that such Additional Capital Contributions shall not exceed corresponding amounts expressly provided for in the Budget, as it may be amended from time to time. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Board making of a capital contribution such determination for Additional Capital Contributions, the Board shall deliver to the Company pursuant to Section 7.2, each Member a written notice (the Interest “Contribution Notice”) of the Noncontributing Member and the Contributing Members Company's need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member's share of such aggregate amount of Additional Capital Contributions based upon each such Member's Membership Interest, and (iv) the date (which date shall not be less than twenty 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 (including the Additional Contributions received by the Company), and Members.
(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 which such Member is obligated to make under Section 3.02, then such Member shall be deemed to be a "Non-Contributing Member". The non-defaulting Member (the "Contributing Member") shall be entitled, but not obligated, to loan to the Non-Contributing Member, by contributing to the Company on its behalf, all or any part of the amount (the "Default Amount") that the Non-Contributing Member failed to contribute to the Company (each such loan, a "Default Loan"), provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. Such Default Loan shall be treated as an Additional Capital Contribution by the Non-Contributing Member. 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 (i) 10% per annum or (ii) the maximum rate permitted at law (the "Default Rate"). Each Default Loan shall be recourse solely to the Non-Contributing Member's Membership Interest. Default Loans shall be repaid out of the distributions that would otherwise be made to the Non-Contributing Member under this Agreement, as more fully provided for in Section 3.02(d). So long as a Default Loan is outstanding, the Non-Contributing Member shall have the right to repay the Default Loan (and interest then due and owing) in whole or in part. Upon the repayment in full of all Default Loans (but not upon their conversion as provided in Section 3.02(c)) made in respect of a Non-Contributing Member (and so long as the Non-Contributing Member is not otherwise a Non-Contributing Member), such Non-Contributing Member shall cease to be a Non-Contributing Member.
(c) At any time after the date twelve months after a Default Loan is made, at the option of the Contributing Members' Interest Member, (i) such Default Loan shall be increased by adding thereto converted into an Additional Capital Contribution of the Contributing Member in an amount equal to the percentage principal and unpaid interest on such Default Loan pursuant to this Section 3.02(c), (ii) the Non-Contributing Member shall be deemed to have received a distribution, pursuant to Article VI, of an amount equal to the principal and unpaid interest on such Default Loan, (iii) such distribution shall be deemed paid to the Contributing Member in repayment of the Default Loan, (iv) such amount shall be deemed contributed by which the Noncontributing Contributing Member as an Additional Capital Contribution (a "Cram-Down Contribution"), and (v) the Contributing Member's Interest was Capital Account shall be increased by, and the Non-Contributing Member's Capital Account shall be decreased pursuant by, an amount equal to clause the principal and unpaid interest on such Default Loan. A Cram-Down Contribution shall be deemed an Additional Capital Contribution by the Contributing Member making (aor deemed making) above. Upon the fourth and each subsequent failure such Cram-Down Contribution as of the Noncontributing Member date such Cram-Down Contribution is made or the date on which such Default Loan is converted to make an Additional Contribution giving rise to a Cram-Down Contribution. At the application time of this Section 7.3a Cram-Down Contribution, a majority-in-interest the Membership Interest of the Contributing Members Member shall have be increased proportionally by the optionamount of such contribution, exercisable in their sole discretion, to cause thereby diluting the remaining Membership Interest of the Noncontributing Member to be forfeited and allocated to Non-Contributing Member. Once a Cram-Down Contribution has been made (or deemed made), no subsequent payment or tender in respect of the Contributing Members or to continue reCram-allocating Down Contribution shall affect the Membership Interests of the Noncontributing Members, as adjusted in accordance with this Section 3.02(c).
(d) Notwithstanding any other provisions of this Agreement, any amount that otherwise would be paid or distributed to a Non-Contributing Member pursuant to Section 6.01 shall not be paid to the Non-Contributing Member but shall be deemed paid and applied on behalf of such Non-Contributing Members as provided Member (i) first, to accrued and unpaid interest on all Default Loans (in the preceding sentence except order of their original maturity date), (ii) second to the principal amount of such Default Loans (in the order of their original maturity date) and (iii) third, to any Additional Capital Contribution of such Non-Contributing Member that has not been paid and is not deemed to have been paid.
(e) Notwithstanding the percentage multiple foregoing, if a Non-Contributing Member fails to make its Additional Capital Contribution in accordance with Section 3.02, the Contributing Member may:
(i) institute proceedings against the Non-Contributing Member to obtain payment of its portion of the Additional Capital Contributions, together with interest thereon at the Default Rate from the date that such Additional Capital Contribution was due until the date that such Additional Capital Contribution is made, at the cost and expense of the Non-Contributing Member; or
(ii) elect to dissolve and liquidate the Company pursuant to ARTICLE XI; or
(iii) purchase the Membership Interest of the Non-Contributing Member at a price equal to the Fair Market Value of its Membership Interest.
(f) Except as set forth in clause (i) (C) this Section 3.02, neither Member shall be increased 100% for each failure of the Noncontributing Member required to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to additional Capital Contributions or make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns loans to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (NeoGames S.A.)
Additional Capital Contributions. 7.1 No 6.4.1 If the Manager at any time or from time to time determines that the Company requires additional Capital Contributions, then the Manager shall give notice to each Class B Member of (i) the total amount of additional Capital Contributions required, (ii) the reason the additional Capital Contribution is required, (iii) each Class B Member's proportionate share of the total additional Capital Contribution, and (iv) the date each Class B Member's additional Capital Contribution is due and payable, which date shall be no less than ten (10) days after the notice has been given. Each Class B Member's share of the additional Capital Contribution shall be payable in cash or by certified check, or wire transfer.
6.4.2 Notwithstanding anything herein to the contrary, no Member shall be obligated required to make additional capital contributions any Additional Capital Contribution to the Company. .
6.4.3 If a Class B Member fails to pay when due all or any portion of any additional Capital Contribution required under Section 6.4.1 (each, a “Non-Contributing Member”), then each Class B Member other than any Non-Contributing Member (each, a “Contributing Member”) shall have the Managing right, but not the obligation, to contribute to the Company (in addition to its initial pro rata share of the additional Capital Contribution) its pro rata portion of those amounts that the Non-Contributing Member fails to contribute (the “Remaining Contribution”), and the Manager shall have the right to re-allocate the Percentage Interests amongst the Class B Members based on the then Capital Contributions made by the Contributing Members and Non-Contributing Members, including the right to issue additional Class B Units to the Contributing Members.
6.4.4 Each Class B Member shall receive a credit to such Class B Member, ’s Capital Account in the amount of any additional Capital Contribution which he/she/it makes to the Company and shall receive such other rights as have been approved by the Manager in connection with such additional Capital Contribution in accordance with the concurrence terms of Members holding a majority in interest this Agreement.
6.4.5 Immediately following any additional Capital Contribution, additional Class B Units may be issued and the Percentage Interests of the CompanyClass B Members may be adjusted if the Manager determines that the Percentage Interests of the Class B Members are to be altered as a result of the additional Capital Contribution, shall determine there and the Register shall be a Required Amount for revised to reflect any Company purposesuch additional Capital Contribution and any such adjustment of Units and the Percentage Interests of the Class B Members. Any revision of the Register in accordance with the preceding sentence shall require only the consent of the Manager (and not any consent of the Class B Members).
6.4.6 In the event any Remaining Contribution is not fully satisfied by additional Capital Contributions of the Contributing Members, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member the Manager may, but shall not be obligated required to, contribute to the Company his Additional Contribution.
7.2 If a Member fails the amount required to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (satisfy the "Noncontributing Member"), then, so long as any other Member shall make his Additional Remaining Contribution as provided herein a loan (each such Member making his Additional a “Contribution being hereinafter referred Loan”) to as "the Non-Contributing Member"), any Contributing Member . The Manager shall have the option of obtaining a third-party loan or using its own funds to fund the proceeds for any such Contribution Loan. Such Contribution Loan shall not be treated as a Capital Contribution by the Manager or entitle the Manager to a Percentage Interest. The Contribution Loan (a) with or Contribution Loans if more than one), shall each be deemed a loan owing by the consent of a majority in interest Non-Contributing Member to the Manager, as applicable. The Contribution Loan shall be repayable only out of the Contributing Members (i) to make a capital contribution equal Net Cash Flow and/or Net Capital Proceeds otherwise distributable to the Additional Contribution not made by the Noncontributing Non-Contributing Member or (ii) to make a Default Loan equal which shall be paid directly to the Additional Contribution not made by Manager, as the Noncontributing Member or (b) with the unanimous written consent of each Contributing Membercase may be and, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that if more than one Contributing Member desires to make an Additional Contributionone, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate then in proportion to the amounts of their respective InterestsContribution Loans, until such Manager’s Contribution Loan or Contribution Loans, as the case may be, and accrued and unpaid interest thereon have been paid in full. All loans made pursuant to this Section 7.2 The Contribution Loan shall bear interest at lower of 15% per annum or the Default Ratemaximum rate permitted by law.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement (Conversion Housing Fund 1, LLC)
Additional Capital Contributions. 7.1 No (a) Except as set forth in Section 11.1 or this Section 11.3, no Member shall be obligated required to make any Capital Contribution. From time to time, the Members shall make additional capital contributions Capital Contributions if and to the Company. If extent a Supermajority Interest determines that such additional Capital Contributions are necessary or appropriate for the Managing Member, with the concurrence of Members holding a majority in interest conduct of the Company’s business, shall determine there shall be a Required Amount for any Company purpose, including, including without limitation, those purposes expansion or diversification (each, an “Additional Capital Contribution”). In that event, such Additional Capital Contributions shall be made on a pro rata basis in accordance with the Members’ Membership Interests. The Company shall give written notice to all the Members of any such Additional Capital Contribution, which notice shall set forth in Article 5, then within fifteen (15) days the aggregate amount of notice of such requirementthe Additional Capital Contribution, each Member mayMember’s pro rata share, but a brief explanation of the reason for the Additional Capital Contribution, and the deadline for the payment of the same, which shall not be obligated to, contribute to the Company his Additional Contributionless than twenty (20) days after delivery of such notice.
7.2 (b) If a any Member fails to make his any Additional Contribution, in whole or in part, as Capital Contribution required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option by paragraph (a) with of this Section 11.3 (a “Defaulting Member”) prior to the consent of a majority date specified by the Company, the Company may, in interest of the Contributing Members its discretion (i) offer, by written notice, to the Members who have complied with their obligation to make a capital contribution equal such Additional Capital Contribution the right, in accordance with their relative Membership Interests (determined prior to the Additional Capital Contribution) to pay to the Company the Defaulting Member’s pro rata share of the Additional Capital Contribution not made by (the Noncontributing Member “Defaulted Contribution”), or (ii) not offer the Defaulted Contribution to make a Default Loan equal such other Members. Irrespective of whether the Company elects to the Additional Contribution not made by the Noncontributing Member proceed under clause (i) or (bii) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In preceding sentence, the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account relative Membership Interests of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
by the Company in good faith to take into account the Defaulting Member’s failure to make the Defaulted Contribution, which adjustment shall take into account (a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (ix) the Additional Contribution not made Capital Contributions paid by the Noncontributing Members other than the Defaulting Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (iiy) the aggregate amount fair market value, determined immediately prior to the Additional Capital Contribution, of all Capital Contributions made by of the Company Property less all of the Company Liabilities. The Company shall promptly thereafter give written notice to the Members (including of such adjusted Membership Interests, which shall be effective as of the Additional Contributions received date of such redetermination by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement (THM Homes Inc)
Additional Capital Contributions. (a) The Members anticipate that cash Capital Contributions (in addition to those provided for in Sections 7.1 No Member shall and 7.3 hereof) will be obligated to make additional capital contributions to required for the Company. If the Managing Member, with the concurrence of Members holding a majority in interest ordinary operating needs of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, management expenses of the Company and [***]. When such operating needs exist, the Board of Directors may require the Members to make additional Capital Contributions in such amounts as the Board of Directors may determine. If the Board of Directors elects to require additional Capital Contributions (in addition to those purposes set forth provided for in Article 5Sections 7.1 and 7.3 hereof) by existing Members, then within fifteen (15) days of notice of it shall offer the right to make such requirement, each Member may, but shall not be obligated to, contribute Capital Contributions to the Company his Additional Contribution.
7.2 then existing Members pro rata in accordance with their respective Percentage Interests. If a Member fails refuses to make his Additional Contributionsuch Capital Contribution because of lack of corporate authority or otherwise, the provisions of Section 7.2(b) will apply. [***] When such Capital Contributions are to be made in whole property, rather than cash, a value for such property shall be established by the Board of Directors. Upon such a Capital Contribution by any new or existing Members such Member shall receive a Capital Account credit for each such additional Capital Contribution at the time and in part, as the amount that such contribution is made. In no event will any Capital Contribution made or required in under this Section 7.1 above 7.2 change the Members' respective Percentage Interests.
(b) If a Member (the "Noncontributing Member") fails to make any additional Capital Contribution (in addition to those provided for in Sections 7.1 and 7.3 hereof) under Section 7.2(a), then, so long as any the other Member shall make his Additional Contribution as provided herein Member(s) (each such Member making his Additional Contribution being hereinafter referred to as the "Contributing Member") may give the Noncontributing Member notice of such failure. If such failure continues for thirty (30) days after such notice has been given, the Contributing Member may elect to take any of the following alternative actions if it has made all of the Capital Contributions due from it to the Company:
(i) The Contributing Member may pursue remedies for such failure to contribute pursuant to Article 15; or
(ii) The Contributing Member may contribute to the Company the cash then due to the Company from the Noncontributing Member, and the amount of such cash shall be deemed to be a loan from the Contributing Member to the Noncontributing Member (a "Default Loan") and a Capital Contribution to the Company, in which case the Noncontributing Member's obligation to make such Capital Contribution shall be *CONFIDENTIAL TREATMENT REQUESTED deemed satisfied. Any Default Loan shall bear interest at the lesser of (A) the maximum rate permitted by applicable law, or (B) the prime rate as quoted by Bank of America N.A. plus two percent (2%), any and shall be due and payable in full (including all accrued interest) within ninety (90) days after the Contributing Member contributes the cash then due to the Company from the Noncontributing Member. If not sooner repaid, the Contributing Member shall have the option (a) with the consent of a majority in interest right to pursue collection of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member amount owed through litigation or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) other means consistent with the unanimous written consent its collection practices of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Ratepast due amounts.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (A) From time to time, upon determination of either Member shall be obligated to make additional capital contributions to the Company. If the Managing (such Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15“Calling Member”) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to that capital is required by the Company his Additional Contribution.
7.2 If a Member fails either to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made consummate an Investment that has been approved by the Noncontributing Member Members pursuant to and in accordance with the terms of this Agreement or (ii) to make a Default Loan equal fund expenses for the upcoming calendar quarter to the Additional Contribution not made by extent such expenses are set forth in the Noncontributing then current Annual Budget, the Calling Member or (b) with the unanimous may deliver written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution notice to the Company pursuant to Section 7.2, the Interest of the Noncontributing other Member and the Contributing Members shall be adjusted as follows:
setting forth (a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (iix) the aggregate amount of the additional Capital Contribution then required to be made by all of the Members, (y) the individual amount of the additional Capital Contribution then required to be made by each Member and (z) the purpose to which the proceeds of such additional Capital Contributions will be applied (such notice, a “Capital Call Notice”). Each Member shall make an additional Capital Contribution, in proportion to their then current Percentage Interests (which shall be specified in the applicable Capital Call Notice) no later than seven (7) Business Days after receipt of a proper Capital Call Notice. Notwithstanding anything to the contrary in this Section 5.2(A), a Capital Call Notice with respect to expenses described in Section 5.2(A)(ii) may not be issued more than once per month.
(B) Except as set forth in Section 5.2(A), no Member shall be required, and no Member shall have any right, to make additional Capital Contributions, except and to the extent required by law or as otherwise agreed in writing by Required Approval.
(C) No member shall be personally liable for the return of any portion of the Capital Contributions (or any return thereon) of the Members. The return of such Capital Contributions (or any return thereon) shall be made by the Members (including the Additional Contributions received by solely from assets of the Company), and (b) the Contributing Members' Interest . No Member shall be increased by adding thereto an amount equal required to pay to the percentage by which the Noncontributing Company or any other Member any deficit in such Member's Interest was decreased pursuant to clause (a) above’s Capital Account upon dissolution or otherwise. Upon the fourth and each subsequent failure of the Noncontributing No Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, right to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members demand or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% receive property other than cash for each failure of the Noncontributing Member to make an Additional Contributionits Interest. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (MMA Capital Holdings, Inc.)
Additional Capital Contributions. 7.1 No Member The Members are not intended to have personal liability for the obligations of the Company above their actual Capital Contributions. in the event that at any time prior to the Collab IPO (as defined below) the Company require capital contributions in excess of the Initial Capital Contributions (the “Additional Capital Contributions”, and, together with the Initial Capital Contributions, the “Capital Contributions”), the Members, by Unanimous Vote (as such term is hereinafter defined in Section 5.07(c)), may decide that additional capital is required to operate the Company and/or any of the Projects. In such event, a contribution request (a “Contribution Request”) shall be obligated sent to make additional all the Members, in writing, stating the amount of capital contributions sought (the “Requested Amount”) and the proposed terms of any Equity Sale by the Collab Member to the Company. If the Managing Local Member, with the concurrence proceeds of Members holding a majority in interest of the Company, shall determine there which shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of used to fund such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein Capital Contributions (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"sale, a “Subsequent Equity Sale” and, collectively, the “Subsequent Equity Sales”), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an the Members have approved any such Additional ContributionCapital Contributions, or is permitted to make a Default Loan, on account the Members shall contribute the amounts called for within ten (10) business days after the closing of the Noncontributing Subsequent Equity Sale relating to such Additional Capital Contributions, and such Contribution Request shall specify each Member’s proportionate share of the Requested Amount, each and the purpose therefor. The then-present Members shall make such Contributing Member contributions pro rata to their then-Percentage Interests. The Collab Member’s Additional Capital Contribution shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at paid by the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest Local Member on behalf of the Noncontributing Collab Member out of the proceeds of such Subsequent Equity Sale and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal deemed to the percentage equivalent of the quotient of (i) the Additional Contribution not have been made by the Noncontributing Collab Member. If any Member giving rise to application does not contribute such Member’s full pro rata share, then the terms of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest 2.03 shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretogovern.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Collab Z Inc.)
Additional Capital Contributions. 7.1 No (a) If at any time or from time to time after all of the Initial Capital Contributions have been contributed, the Managing Member shall be obligated determines that additional funds (a “Shortfall”) are reasonably required (i) for costs contemplated by the Initial Budget and Operating Plan, including but not limited to make additional capital contributions costs associated with a foreclosure proceeding involving the Property, survey and title for the Property upon completion of such foreclosure proceeding, startup costs or costs associated with working capital, but only to the Company. If extent not covered by the Initial Capital Contributions, as adjusted, made pursuant to Section 4.1, (ii) to meet the ongoing obligations, liabilities, Expenses or reasonable business needs of the Company in accordance with the then applicable Budget or Operating Plan, or to pay Necessary Expenses or other costs which are not provided for in the Budget and Operating Plan, but which are Approved by the Managing MemberMember to the extent not covered by the Initial Capital Contributions, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount or (iii) for any Company other purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen the Managing Member may (15) days of notice of such requirement, each Member may, but shall not be obligated to), require that each of the Members contribute its pro rata share (based upon the Percentage Interests of the Members at the time of such request) of such Shortfall (such pro rata share, an “Additional Capital Contribution”). If so requested by the Managing Member, such payment shall be due within five (5) Business Days thereafter (or by the 1st calendar day of the next month, whichever is later).
(b) Notwithstanding anything to the Company his contrary contained herein, a failure by any Member to make any Additional Contribution.
7.2 Capital Contribution to the extent required or requested hereunder shall not constitute an Event of Default by such Member and the sole consequences of such failure shall be as set forth in this Section 4.2. If a any Member (the “Non-Contributing Member”) fails to timely make his all or any portion of any Additional Contribution, in whole or in part, Capital Contribution as required in pursuant to Section 7.1 above 4.2(a) above, then one or more of the other Members that is not an Affiliate of the Non-Contributing Member (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "“Contributing Member"), any ”) may make such Additional Capital Contribution on behalf of the Non-Contributing Member shall have the option (a) with the consent of any such Capital Contribution by a majority in interest of Contributing Member, a “Substitute Contribution”). In such an event, the Contributing Members Member may elect by written notice given with five (5) Business Days of making the Substitute Contribution either (i) to make a capital contribution equal to treat the Additional Contribution not made entire amount contributed by the Noncontributing Contributing Member (including both the Contributing Member’s and the Non-Contributing Member’s pro rata portion thereof) as a Priority Capital Contribution (a “Priority Capital Contribution”) by such Contributing Member in accordance with Section 4.2(c) below, or (ii) to make treat the Substitute Contribution as a Default Loan equal regular Capital Contribution in accordance with Section 4.2(d) below.
(c) To the extent any Contributing Member 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).
(d) If a Contributing Member elects to treat a Substitute Contribution as a regular Capital Contribution, then the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent Percentage Interest of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount to equal to the percentage equivalent of the quotient of determined by dividing:
(i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by positive difference, if any, between:
(A) 200% upon the first failure sum of (I) one hundred percent (100%) of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions (excluding Substituted Capital Contributions) then or theretofore made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing such Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication plus (II) two hundred percent (200%) of the Substituted Capital Contributions then or otherwise theretofore made by such Member to the contraryCompany; minus
(B) the Substituted Capital 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, Substituted Capital Contributions) then or theretofore made by all of the Members to the Company. In addition, in the event the Non-Contributing Member is DD-CTP, then in such case the Promote Percentages will be reduced to the same extent DD-CTP’s Percentage Interest is reduced (i.e., if DD-CTP’s Percentage Interest is reduced by 50%, then all Promote Percentages shall be reduced by 50%).
Appears in 1 contract
Sources: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Additional Capital Contributions. 7.1 (a) No Member shall be obligated required to make any additional Capital Contribution to the Company in respect of the Interests then owned by such Member. However, from and after the date hereof, Management Members, Outside Members and Investor Members shall have the right Table of Contents (but not the obligation) to make additional capital Capital Contributions to the Company at any time, upon the approval of the Board (which authorization must be approved by at least one GSCP Director, one ▇▇▇▇▇ Director and one VAC Director and is further subject to compliance with the provisions of Sections 4.12 and 6.4(b)). Any contributions of property after the date hereof shall be valued at their Fair Market Value.
(b) Without limiting the generality of Section 6.4(a) (and without duplication), if after the date hereof and prior to an Initial Public Offering, the Company proposes to issue, other than any Exempt Issuances, any Interests (the “Proposed Third Party Interests”), the Company shall first offer in writing (the “Initial Preemptive Rights Notice”) to sell to (x) each Investor Member and (y) each Management Member and Outside Member who continues to hold at least 10% of the Units that such Management Member or Outside Member (together with its Affiliates), as applicable, purchased on the date hereof (or on the date such member was admitted as an Additional Member in accordance with Section 3.9(a), if applicable), their respective Pro Rata Share of such Proposed Third Party Interests. A Member, upon receipt of an Initial Preemptive Rights Notice, shall have twenty (20) days to indicate in writing whether it accepts the offer to participate in such issuance, setting forth the number of Proposed Third Party Interests it wishes to purchase (up to its Pro Rata Share of such Proposed Third Party Interests, such portion that such Member wishes to purchase, the “Initial Purchase Amount”); provided that in order to exercise its rights under this Section 6.4(b), such Member must execute all customary transaction documents in connection with such issuance; provided further that in the event that the Company is issuing more than one type or class of securities in connection with such issuance, each Member participating in such issuance shall be required to acquire the same percentage of all such types and classes of securities. Upon the earlier of the expiration of such twenty (20) day period or the date upon which the Members receiving the Initial Preemptive Rights Notice have responded thereto in writing to the Company. If , (x) if all of the Managing Members have affirmatively responded to such Initial Preemptive Rights Notice to purchase each such Member’s entire Pro Rata Share of such Proposed Third Party Interests, with the concurrence Company may no longer issue and sell such Proposed Third Party Interests to the offerees thereof or (y) if not all of such Members holding a majority have affirmatively responded to such Initial Preemptive Rights Notice, then such Proposed Third Party Interests specified in interest the Initial Preemptive Rights Notice that are not purchased by the Members receiving the Initial Preemptive Rights Notice (the “Declined Interests”) pursuant to the terms of this Section 6.4(b) shall be offered by the Company, by written notice (the “Second Preemptive Rights Notice”) to the Investor Members that have affirmatively responded to the Initial Preemptive Rights Notice, and each such participating Investor Member shall determine there shall have ten (10) days to indicate in writing whether it accepts the offer to purchase its pro rata portion of the Declined Interests (such pro rata portion to be calculated based on each such participating Investor Member’s ownership of Units in relation to the ownership of Units by the other participating Investor Members that received the Second Preemptive Rights Notice, such portion that such Member wishes to purchase, the “Additional Purchase Amount”). If any Declined Interests specified in the Second Preemptive Rights Notice are not purchased by the participating Members receiving the Second Preemptive Rights Notice, such further declined securities may be issued and sold by the Company to the offerees thereof (at a Required Amount for any purchase price and on terms no less favorable to the Company purpose, including, without limitation, those purposes than the terms set forth in Article 5, then the Initial Preemptive Rights Notice) within fifteen ninety (1590) days of the date of the Initial Preemptive Rights Notice. The Company shall issue an aggregate number of Proposed Third Table of Contents Party Interests to each Member that has given written notice of the exercise of its rights hereunder equal to the sum of the Initial Purchase Amount and all Additional Purchase Amounts applicable to such requirementMember as soon as practicable, each Member mayand in no event later than the later of (i) five Business Days after receipt of such notice, but shall not be obligated toand (ii) the closing of the issuance of such Interests to the third-party purchaser, contribute against payment to the Company his Additional Contributionby such Member of solely cash consideration for such Interests. Any equity securities not issued within the 90-day period will be subject to the provisions of this Section 6.4(b) upon subsequent issuance. The Company shall provide that the issuance of interests in any Subsidiary shall be subject to preemptive rights substantially similar to, and in favor of the holders of, the rights described in this Section 6.4(b); provided, however, that such preemptive rights relating to any Subsidiary shall terminate upon the Initial Public Offering.
7.2 If a Member fails (c) Notwithstanding anything to make his Additional Contributionthe contrary herein, in whole or in partexcept upon the unanimous approval of the Board, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing no Member shall have the option (a) right to make additional Capital Contributions to the Company or purchase additional Units or equity securities pursuant to this Section 6.4 and the Company shall not be required to deliver a Preemptive Rights Notice in connection with the consent of a majority in interest of the Contributing Members (i) issuances to management, employees, officers or directors of the Company or any of its Subsidiaries pursuant to management incentive programs approved by the Override Unit Committee, including any issuances of Override Units under this Agreement, (ii) issuances to a Third Party in connection with (A) the debt financing of the Company or any of its Subsidiaries or (B) any restructuring or refinancing of indebtedness of the Company or any of its Subsidiaries, (iii) issuances, deliveries or sales of securities by the Company or any of its Subsidiaries to a Third Party in connection with the acquisition, strategic business combination or investment by the Company approved by the Board in any party which is not, prior to such transaction, an Affiliate of the Company or any Member (whether by merger, consolidation, stock swap, sale of assets or securities, or otherwise) or (iv) issuances, deliveries or sales of securities by the Company in connection with an IPO or a registration pursuant to the Registration Rights Agreement (collectively, “Exempt Issuances”).
(d) The provisions of this Section 6.4 are intended solely to benefit the Members and, to the fullest extent permitted by applicable law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor shall be a third party beneficiary of this Agreement), and no Member shall have any duty or obligation to any creditor of the Company to make a any additional Capital Contributions or to cause the Board to consent to the making of additional Capital Contributions. Members shall be deemed to have contributed such additional capital contribution upon issuance of additional Interests equal to the Additional Contribution not made by the Noncontributing Member cash purchase price for such Interests or, if no cash is paid or there is non-cash consideration (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In including in the event that more than one Contributing Member desires to make an Additional Contributionthe Company or any Subsidiary acquires any company or business (whether by stock purchase, merger or is permitted to make a Default Loanotherwise, on account including any Company or business acquired or transferred from any Affiliate of the Noncontributing MemberCompany), each and Units are issued in respect of such Contributing acquisition), in the amount of the Fair Market Value of such non-cash consideration as determined by the Board in good faith at or prior to issuance of such Interests. For the avoidance of doubt, the immediately foregoing sentence shall also apply to issuances of Interests to Additional Members. No Member shall be permitted to participate in proportion to their respective Interests. All loans made finance its additional Capital Contribution pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) 6.4 by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majorityor through third-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.party
Appears in 1 contract
Sources: Limited Liability Company Agreement (Auto Disposal of Memphis, Inc.)
Additional Capital Contributions. 7.1 (a) No Member shall be obligated to make Capital Contributions to the Company without the consent of such Member, nor shall any Member be entitled to make any Capital Contribution other than as contemplated by Section 6.01 or pursuant to this Section 6.02 or Section 6.03, provided that this sentence shall not limit the obligations of Members to make payments pursuant to Section 10.01(d). The Board of Representatives shall amend Schedule 3.02 to reflect the making of any additional capital Capital Contributions and the issuance of any additional Membership Units hereunder.
(b) Subject to Section 6.02(c), in the event that the Board of Representatives determines that the Company requires additional funds for proper Company purposes other than making distributions to the Members, the Company, on behalf of the Board of Representatives (following approval pursuant to Section 4.04), shall make one (1) or more written requests for the Members to make additional Capital Contributions in cash (the “Additional Cash Contributions”). The respective portion of any Additional Cash Contributions will be determined pro rata based on the number of Membership Units held by such Member relative to the number of Membership Units held by all Members at the time of such request. Members, when so requested, will have the obligation to make their full requested Additional Cash Contributions. Such request will specify the date on or before which the contributions must be delivered to the Company. If , which date will not be earlier than thirty (30) calendar days after the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days provision of notice of such requirement, each Member may, but shall not be obligated to, contribute request to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's defaultall Members. In the event that more than one Contributing any Member desires fails to make an any required Additional Cash Contribution, or is permitted the other Members shall have the right to make a Default Loan, on account of loan to the Noncontributing Member, each such Contributing Member shall be permitted to participate Company (in proportion to their respective Interests. All loans made relative ownership interest in the Company) the amount of such Additional Cash Contribution on an unsecured basis at an interest rate of LIBOR (London Interbank Offered Rates with a term of three (3) months as published in The Wall Street Journal) plus 10% (1000 basis points); provided that (i) the making of a loan by any other Member pursuant to this Section 7.2 6.02(b) shall bear interest at not relieve a non-contributing Member’s obligation to make the Default Rate.
7.3 Upon applicable Additional Cash Contribution (together with any accrued, but unpaid, interest) and (ii) on the making last business day of a capital contribution each calendar quarter, such non-contributing Member shall contribute to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made interest accrued (whether or not paid) on such loan during such quarter. No additional Membership Units shall be issued by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 Company with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an any Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 Cash Contributions or any other provision of this Operating Agreement to make any contributions or returns made relating to the Company’s interest expense incurred pursuant to any loan accepted pursuant to this Section 6.02(b) unless approved by the Board of Representatives by Supermajority Vote.
(c) Prior to requesting any future funding from the Members, notwithstanding any agreementthe Board of Representatives, representationby a Supermajority Vote, intentionshall confirm whether such funding shall be in the form of equity or debt (and if debt, indication or otherwise to the contraryterms thereof).
Appears in 1 contract
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with Subject to the consent of a majority in interest approval of the Contributing Majority Member in accordance with Section 7.02(a), in addition to their Initial Capital Contributions, from time to time, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Percentage Interests, as determined by the Board from time to time to be reasonably necessary to pay any operating, capital, or other expenses relating to the Business and (such additional Capital Contributions, the “Additional Capital Contributions”); provided, that such Additional Capital Contributions shall not exceed the corresponding amounts expressly provided for in the then approved Budget. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Board making of a capital contribution such determination to call for Additional Capital Contributions, the Board shall deliver to the Company pursuant to Section 7.2, the Interest Members a written notice of the Noncontributing Member and the Contributing Members Company’s need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member’s pro rata share of such aggregate amount of Additional Capital Contributions made by the Members (including the Additional Contributions received by the Companybased upon such Member’s Percentage Interest), and (iv) the date (which date shall not be less than sixty (60) Business Days following the date that such notice is given) on which such Additional Capital Contributions shall be required to be made by the Members.
(b) If any Member shall fail to timely make, or notifies the Contributing Members' Interest other Members that it shall not make, all or any portion of any Additional Capital Contribution which such Member is obligated to make under Section 3.03(a), then such Member shall be increased by adding thereto an amount equal deemed to be a “Non-Contributing Member.” A Member that is not a Defaulting Member (a “Contributing Member”) shall be entitled, but not obligated, to loan to the percentage Non-Contributing Member, by which contributing to the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure Company on its behalf, all or any part of the Noncontributing amount (the “Default Amount”) that the Non-Contributing Member failed to make contribute to the Company (each such loan, a “Default Loan”); provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. The proceeds of such Default Loan shall be treated as an Additional Capital Contribution giving rise by the Non-Contributing Member.
(i) 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 (i) fifteen percent (15%) per annum and (ii) the maximum rate permitted at law (the “Default Rate”). Default Loans shall be repaid out of any distributions that would otherwise be made to the application of this Non-Contributing Member, as more fully provided in Section 7.33.03(c); provided, that, so long as a majorityDefault Loan is outstanding, the Non-in-interest of the Contributing Members Member shall have the option, exercisable right to repay it (together with interest then due and owing) in their sole discretion, whole or in part. Upon a repayment in full of a Default Loan made to cause the remaining Interest of the Noncontributing a Non-Contributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members any unpaid Default Amount (together with interest accrued thereon as provided in Section 3.03(c)), such Non-Contributing Member shall (so long as it does not have any other outstanding Default Loans and is not otherwise a Non-Contributing Member with respect to any other Additional Capital Contributions) cease to be a Non-Contributing Member.
(c) Notwithstanding any other provisions of this Agreement, any amount that otherwise would be paid or distributed to a Non-Contributing Member pursuant to Section 6.01 or ARTICLE XII shall not be paid to such Non-Contributing Member but shall be deemed paid and applied on behalf of such Non-Contributing Member (i) first, to accrued and unpaid interest on all Default Loans (in the preceding sentence except order of their original maturity dates) made to such Non-Contributing Member (in the order of their original maturity dates), (ii) second, to the outstanding principal amount of such Default Loans (in the order of their original maturity dates), and (iii) third, to fund any Additional Capital Contribution of such Non-Contributing Member that has not been paid when due or funded pursuant to a Default Loan; provided that any unpaid Default Amount that is not funded pursuant to a Default Loan shall bear interest at the Default Rate (compounded monthly on the first day of each calendar month) from the date such Additional Capital Contribution was due until paid in full to the Company.
(d) Notwithstanding the foregoing, if a Non-Contributing Member fails to make its Additional Capital Contribution in accordance with Section 3.03(a), without limitation of any other rights or remedies that may be available, a Contributing Member may institute proceedings against the Non-Contributing Member, either in the Contributing Member’s own name or on behalf of the Company, to obtain payment of the Non-Contributing Member’s portion of the unpaid Additional Capital Contribution, together with interest accrued thereon at the Default Rate from the date that such Additional Capital Contribution was due until the date that such Additional Capital Contribution is made, at the cost and expense of the Non-Contributing Member.
(e) Each Member acknowledges and agrees that it would be impracticable or extremely difficult to determine the actual damages incurred by a Contributing Member as a result of a failure of a Member to fund its portion of an Additional Capital Contribution, and that the percentage multiple entitlement of a Contributing Member to exercise the remedies described in this Section 3.03 is fair and reasonable.
(f) Except as set forth in clause (i) (C) Section 3.02, Section 3.03 or Section 3.06, neither Member shall be increased 100% for each failure of the Noncontributing Member required to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to additional Capital Contributions or make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns loans to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Algorhythm Holdings, Inc.)
Additional Capital Contributions. 7.1 No Each Member shall be obligated to make contributions of additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his in cash (“Additional Contribution.
7.2 If Capital Company by Majority Vote, evidenced by a Member fails to make his Additional Contribution, member resolution specifying in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:reasonable detail
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (iib) the aggregate amount of all such Additional Capital Contributions, (c) each Member’s share of such aggregate amount of Additional Capital Contributions based upon each such Member’s ownership interest, (d) the date (which date shall not be less than 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 (including the Additional Contributions received by the Company)Members, and (be) the Contributing consequence of any Member’s or Members' Interest ’, as the case may be, failure to make such Additional Capital Contribution shall be increased by adding thereto an amount equal only reduce a member’s distributions of profit until such time as the Additional Capital Contribution are returned to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause contributing members before a non-contributing member receives any distribution
(a) above. Upon the fourth and each subsequent failure of the Noncontributing Member Except, Class B members shall be required to make an Additional Contribution giving rise additional capital contribution of $6,000.00 per year or $500.00 per month regardless of their respective unequal contribution or equity interest in Class B. Should a Class B member fail to make the $6,000.00 additional annual or monthly capital contribution within thirty days of the acknowledgement of this agreement, in addition to any contributions made into the common fund for use of company property, any interest the Class B member has will be forfeited, and automatically redeemed by the company. All capital contributions made to the application company will be deposited into the common fund of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member ▇▇▇▇▇▇ GARDENS LLC to be forfeited and allocated used at the managers discretion for any purpose. Class B members have no right to the Contributing Members any distributions or to continue re-allocating the Interests withdrawal of the Noncontributing Member and Contributing Members as provided in the preceding sentence contributions, except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure upon a sale of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoproperty.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property, the Company, or its Subsidiaries. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member’s then current Percentage Interest. Such additional Capital Contributions 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) If a Member (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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty percent (20%) per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of any 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member’s Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement time or both, would be in default) in any material respect under any loan, indenture, mortgage, non-residential 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Except as otherwise provided below in this Section 3.2, no Member shall be obligated to make contribute additional capital contributions to the Company. If the Managing Each Member, with upon written call therefor (the concurrence of Members holding a majority in interest of "Capital Call Notice") by the Day-to-Day Manager, shall promptly contribute to the Company, in proportion to its respective Percentage Interest, additional Capital Contributions (each, an "Additional Capital Contribution") in the event there are insufficient funds to pay costs and expenses which are due and payable and are in accordance with the Approved Project Budget and Plan. Capital Call Notices shall determine there only be made in accordance with the Approved Business Plan. In addition to the foregoing, the Day-to-Day Manager shall be reasonably consider and consult with the non-managing Member on any request by the non-managing Member to make a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days Capital Call Notice. Upon receipt of notice of such requirementa Capital Call Notice delivered pursuant to this Section 3.2, each Member may, but shall not be obligated to, contribute have seven (7) business days to make its share of the Additional Capital Contribution required thereby. If a Member ("Non-Contributing Member") fails to fund to the Company his its pro rata share of any Additional Contribution.
7.2 If Capital Contribution (a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing MemberCash Deficit"), then, so long as any then the other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any provided such Contributing Member has funded all amounts required of such Contributing Member, shall have the right, but not the obligation, to elect to do the following (which, except as provided in Section 5.5(c), shall be the sole and exclusive remedies of such Contributing Member against such Non-Contributing Member):
(a) DEFICIT LOAN. Fund the Cash Deficit to the Company, in which event the amount so funded shall constitute a loan from the Contributing Member to the Non-Contributing Member ("Deficit Loan"). The Non-Contributing Member shall have receive a credit to its Capital Account in the option (a) with the consent amount of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default such Deficit Loan. Each Deficit Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 an obligation with recourse and shall bear interest at the Default Rate.
7.3 Upon per annum rate of four hundred (400) basis points over the making of a capital contribution Base Rate prevailing on the date such loan is made, compounded monthly, and shall be due and payable no later than upon demand (the "Due Date"). Until such Deficit Loan is paid in full, all fees, payments and distributions otherwise payable to the Non-Contributing Member shall be deemed to be paid or distributed to the Non-Contributing Member for Company tax and accounting purposes, but such fees, payments or distributions shall actually be paid or distributed directly to the Contributing Member in repayment of such Deficit Loan, with such funds being applied first to reduce any interest accrued on such Deficit Loan and then to reduce the principal amount of such Deficit Loan. If such Deficit Loan and all accrued interest thereon is not paid by the Due Date, the Contributing Member may elect to (i) convert the outstanding principal amount of the Deficit Loan and the accrued and unpaid interest thereon to capital of the Contributing Member, thereby diluting the Non-Contributing Member's Percentage Interest as detailed in Section 3.2(b) (the "Dilution Contribution"), (ii) exercise the buy/sell provisions of Section 12 pursuant to Section 7.23.2(c), or (iii) extend the Interest Due Date of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom Deficit Loan for an amount equal to the percentage equivalent additional period of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretotime.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ashton Houston Residential L.L.C.)
Additional Capital Contributions. 7.1 No (a) Subject to Section 9.07(b), if at any time or from time to time, the Company is required to contribute capital to the Venture pursuant to Section [4.03] of the Venture Agreement and the aggregate amount of Capital Contributions made under this Section 4.02(a), including the contribution in question, would not exceed twenty-five million dollars ($25,000,000), and for the avoidance of doubt subject to Section 4.02(b), the Company shall call additional capital under this Section 4.02(a) and each Member shall make an additional Capital Contribution to the Company (each such Capital Contribution, an “Additional Capital Contribution”), in an amount equal to such Member’s pro rata share in accordance with such Member’s respective Percentage Interests of the aggregate amount being called (any such request, a “Capital Call”). To make such a request, the Managing Member shall notify the Members in writing that additional capital is required by the Company (a “Capital Call Notice”). The Capital Call Notice shall specify the amount of the Capital Call, the purpose of the Capital Call, the amount of each Member’s pro-rata share of the Capital Call, the date by which such Additional Capital Contributions are needed (which shall be no less than ten (10) Business Days after the date of the Capital Call Notice) and the Company account to which the Additional Capital Contribution shall be wired.
(b) If at any time or from time to time, the Company is required to contribute capital to the Venture pursuant to Section 4.03 of the Venture Agreement and the aggregate amount of Capital Contributions made under Section 4.02(a) and this 4.02(b), including the contribution in question, would exceed twenty-five million dollars ($25,000,000), the Company shall call additional capital under this Section 4.02(b) and TPG Member shall be obligated required to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of all such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as Capital Contributions; provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing that Madison Member shall have the option right, but not the obligation, to contribute up to its pro rata share in accordance with its Percentage Interest of the aggregate amount being called (aany such request, an “Excess Capital Call”) with by electing by notice to TPG Member stating the consent amount or all of its pro rata share it will contribute (an “Excess Capital Contribution Response”) within five (5) Business Days of receipt of a majority notice (an “Excess Capital Call Notice”). The Excess Capital Call Notice shall be in interest the form of a Capital Call Notice, but shall further state that it is an “Excess Capital Call Notice” for which Madison Member has no obligation. If Madison Member delivers an Excess Capital Contribution Response it will make its Additional Capital Contribution on or prior to the Contributing Members date specified in the Excess Capital Call Notice.
(ic) Except as expressly provided in this Section 4.03, no Member, nor any Affiliate of any Member shall have any right to make a capital contribution equal Capital Contribution to the Additional Contribution not made by Company or to loan money to the Noncontributing Member Company or (ii) to make a Default Loan equal Capital Contribution to or a loan to any Subsidiary of the Additional Contribution not made by the Noncontributing Member or Company; provided that nothing in this Section 4.02 (bc) with the unanimous written consent of each Contributing Member, to declare shall restrict any intercompany loan between the Company terminated as a result and any Subsidiary of the Noncontributing Member's default. In Company or among the event that more than one Contributing Member desires to make an Additional Contribution, Company or is permitted to make a Default Loan, on account Subsidiaries of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. Company.
(d) All loans Capital Contributions made pursuant to this Section 7.2 Article IV shall bear interest at the Default Rate.
7.3 Upon the making be made by wire transfer of a capital contribution funds to the Company pursuant to Section 7.2, account designated in the Interest applicable Capital Call Notice. Except upon the dissolution of the Noncontributing Company or as may be specifically provided in this Agreement, no Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, right to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members demand or to continue re-allocating receive the Interests return of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 all or any other provision part of this Operating Agreement to make any contributions or returns its Capital Contributions to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Subscription Agreement (Thomas Properties Group Inc)
Additional Capital Contributions. 7.1 No If the Managing Member shall be reasonably determines that the Company requires additional cash funds in order to pay Company Costs and Expenses then due and payable or due and payable within the next 60 days (the amount by which such Company Costs and Expenses exceeds the Company’s available funds is referred to as the (“Shortfall Amount”), and if another Member is not otherwise obligated to make such additional capital contributions Capital Contribution pursuant to Section 4.2(b), Section 4.2(c), and/or Section 4.2(d) below, the Managing Member shall deliver a Contribution Notice to all of the other Members requesting that such Members make additional Capital Contributions to the CompanyCompany in the aggregate amount equal to the Shortfall Amount. Such additional Capital Contributions shall be made by the Members pro rata in accordance with their Contribution Percentages. If a Member reasonably determines that the Company requires additional Capital Contributions to pay Company Costs and Expenses and the Managing Member has not delivered a Contribution Notice to the Members, then such Member may deliver a written notice (a “Cap Call Notice”) to the Managing Member directing the Manager Member to deliver a Contribution Notice to the Members requesting that the Members make additional Capital Contributions to the Company in the aggregate amount equal to the Shortfall Amount (or if a particular Member is obligated to make such additional Capital Contribution pursuant to Section 4.2(b), Section 4.2(c), and/or Section 4.2(d), directing the Managing Member to deliver a Contribution Notice to the applicable Member that is so required to make such additional Capital Contributions). If the Managing Member, with Member fails to deliver a Contribution Notice to the concurrence of Members holding a majority in interest within three (3) Business Days of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5delivery of the Cap Call Notice, then within fifteen the Member who delivered the Cap Call Notice may deliver a Contribution Notice to the Members requesting that the Members (15or the applicable Member) days of notice of such requirement, each Member may, but shall not be obligated to, contribute make additional Capital Contributions to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an aggregate amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoShortfall Amount.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (New Home Co LLC)
Additional Capital Contributions. 7.1 (a) Except as otherwise provided herein, no Member or Affiliate of any Member shall have the right or obligation to make any loan to the Company without the prior written consent of all Members. No Member shall have the right or be obligated required to make any additional Capital Contribution to the Company unless such Capital Contribution has been approved as a Major Decision; provided, however, that Managing Member or Non-Managing Member, each in its sole and absolute discretion, may elect to make additional capital contributions Capital Contributions to pay Necessary Expenses if Available Cash from Operations is not sufficient to pay for any such Necessary Expenses. If any additional Capital Contributions are approved or permitted as set forth above, then, prior to making any such contribution, one of the Members shall request in writing that the other Member fund its Membership Percentage of such additional Capital Contribution. In such event, Managing Member or Non-Managing Member shall have the right, but not the obligation, to contribute their Membership Percentage of the specified amount within thirty (30) days (or such shorter time period as may be appropriate under the circumstances, but in no event less than five (5) Business Days) after the date of receipt of notice of the request for such additional Capital Contributions. Any amounts contributed pursuant to this Subsection 3.2(a) by any Member shall be added to the Capital Account of that Member.
(b) If Managing Member or Non-Managing Member (in such instance, a “Non-Contributing Member”) does not contribute all of an additional Capital Contribution that is requested under Section 3.2(a) within the time period described in Section 3.2(a), then the contributing Member (the “Contributing Member”) shall elect either: (i) to cancel the request for the additional Capital Contribution made pursuant to Section 3.2(a) or (ii) (x) if the Non-Contributing Member does not contribute any portion of the requested additional Capital Contribution, to fund all amounts requested pursuant to Section 3.2(a) as a loan to the Company (a “Member Loan”) or (y) if the Non-Contributing Member shall have funded a portion, but not all, of the additional Capital Contribution requested from the Non-Contributing Member, to fund as an additional Capital Contribution such portion of the Capital Contribution requested from the Contributing Member the amount necessary to keep the additional Capital Contributions so made by the Members in proportion to their Membership Percentages and to fund the balance as a Member Loan to the Company. If A Member Loan shall not be deemed to be a Capital Contribution for purposes of this Agreement. Each Member Loan shall bear interest at a rate equal to the Managing Memberlower of twelve percent (12%) per annum, with compounded monthly, or the concurrence maximum rate of Members holding a majority in interest permitted by applicable law, and shall be recourse only to the assets of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 . If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other makes a Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 3.2(b), then such Member shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution receive payments with respect to the Company pursuant such Member Loan as described in Sections 4.1 and 4.2 before any distributions are made with respect to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) aboveSections 3.1 and 3.2(a). Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of The remedies provided in this Section 7.3, a majority-in-interest of 3.2(b) for the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations fund its share of a requested Capital Contribution shall be the Members contained sole remedies available with respect thereto. Nothing in this Section 7 are personal and run only 3.2 shall be deemed to the benefit obligate any Member to cause any of the Company and the Members and may not be enforced by its Affiliates to incur any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryRecourse Liabilities.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Additional Capital Contributions. 7.1 No (A) From time to time, upon determination of either Member shall be obligated to make additional capital contributions to the Company. If the Managing (such Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15“Calling Member”) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to that capital is required by the Company his Additional Contribution.
7.2 If a Member fails either to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made consummate an Investment that has been approved by the Noncontributing Member Members pursuant to and in accordance with the terms of this Agreement or (ii) to make a Default Loan equal fund expenses for the upcoming calendar quarter to the Additional Contribution not made by extent such expenses are set forth in the Noncontributing then current Annual Budget, the Calling Member or (b) with the unanimous may deliver written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution notice to the Company pursuant to Section 7.2, the Interest of the Noncontributing other Member and the Contributing Members shall be adjusted as follows:
setting forth (a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (iix) the aggregate amount of the additional Capital Contribution then required to be made by all of the Members, (y) the individual amount of the additional Capital Contribution then required to be made by each Member and (z) the purpose to which the proceeds of such additional Capital Contributions will be applied (such notice, a “Capital Call Notice”). Each Member shall make an additional Capital Contribution, in proportion to their then current Percentage Interests (which shall be specified in the applicable Capital Call Notice) no later than seven (7) Business Days after receipt of a proper Capital Call Notice. Notwithstanding anything to the contrary in this Section 5.2(A), a Capital Call Notice with respect to expenses described in Section 5.2(A)(ii) may not be issued more than once per month.
(B) Except as set forth in Section 5.2(A), no Member shall be required, and no Member shall have any right, to make additional Capital Contributions, except and to the extent required by law or as otherwise agreed in writing by Required Approval.
(C) No member shall be personally liable for the return of any portion of the Capital Contributions (or any return thereon) of the Members. The return of such Capital Contributions (or any return thereon) shall be made by the Members (including the Additional Contributions received by solely from assets of the Company), and (b) the Contributing Members' Interest . No Member shall be increased by adding thereto an amount equal required to pay to the percentage by which the Noncontributing Company or any other Member any deficit in such Member's Interest was decreased pursuant to clause (a) above’s Capital Account upon dissolution or otherwise. Upon the fourth and each subsequent failure of the Noncontributing No Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, right to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members demand or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% receive property other than cash for each failure of the Noncontributing Member to make an Additional Contributionits Interest. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (MMA Capital Holdings, Inc.)
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures approved by the Managers. Except as otherwise agreed by the Members, such subsequent and additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by fifty percent (50%) in the case of Bluerock and fifty percent (50%) in the case of TSC, and 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) If a Member (a "Defaulting Member") fails to make a Capital Contribution that is required as provided in Section 4.4(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:
(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 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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twelve (12%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare 's interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's defaultright to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 4.4(b)(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 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;
(ii) 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 Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making Company from available Cash from Operations and Cash from Sale or Refinancing, 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, the Interest of the Noncontributing Member and the Contributing Members 4.4(b)(ii) shall not be adjusted treated as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional a Capital Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by Defaulting Member;
(Aiii) 200% upon the first failure in lieu of the Noncontributing Member to make an Additional remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, (B) 300% upon whereupon the second such failure and (C) 400% upon portion of the third such failure, divided by (ii) the aggregate amount of all Capital Contributions Contribution made by the Members non-failing Member shall be returned within ten (including 10) days with interest computed at the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 4.4, no additional Capital Contributions shall be required under Section 4.4(b) from any Member if (i) the Company or any other provision 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; provided, however, if such additional Capital Contribution is required to cure a monetary default thereunder then this Operating Agreement subsection (i) exception shall not apply, (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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Enhanced Multifamily Trust, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with In addition to the consent of a majority in interest Initial Capital Contributions of the Contributing Members, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Membership Interests, as determined by the Managing Member from time to time to be reasonably necessary to pay any operating, capital or other expenses relating to the Business (such additional Capital Contributions, the "Additional Capital Contributions"), provided, that such Additional Capital Contributions shall not exceed the corresponding amounts expressly provided for in the then-current Budget, as it may be amended from time to time in accordance with Section 7.06(b). All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Managing Member making of a capital contribution such determination for Additional Capital Contributions, the Managing Member shall deliver to the Company pursuant to Section 7.2, the Interest Non-Managing Member a written notice of the Noncontributing Member and the Contributing Members Company's need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member's share of such aggregate amount of Additional Capital Contributions based upon such Member's Membership Interest, and (iv) the date (which date shall not be less than [NUMBER] 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 (including the Additional Contributions received by the Company), and Members.
(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 which such Member is obligated to make under Section 3.02(a), then such Member shall be deemed to be a "NonContributing Member". The non-defaulting Member (the "Contributing Member") shall be entitled, but not obligated, to loan to the NonContributing Member, by contributing to the Company on its behalf, all or any part of the amount (the "Default Amount") that the NonContributing Member failed to contribute to the Company (each such loan, a "Default Loan"), provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. Such Default Loan shall be treated as an Additional Capital Contribution by the Non-Contributing Member. 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 (i) [PERCENTAGE]% per annum or (ii) the maximum rate permitted at law (the "Default Rate"). [Each Default Loan shall be recourse [debt/solely to the Non-Contributing Member's Membership Interest].] 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(d). So long as a Default Loan is outstanding, the Non-Contributing Member shall have the right to repay the Default Loan (together with interest then due and owing) in whole or in part. Upon the repayment in full of all Default Loans (but not upon their conversion as provided in Section 3.02(c)) made in respect of a Non-Contributing Member (and so long as the Non-Contributing Member is not otherwise a Non- Contributing Member), such Non-Contributing Member shall cease to be a Non-Contributing Member.
(c) At any time after the date [NUMBER] [months/[OTHER TIME PERIOD]] after a Default Loan is made, at the option of the Contributing Members' Interest Member, (i) such Default Loan shall be increased by adding thereto converted into an Additional Capital Contribution of the Contributing Member in an amount equal to the percentage by which the Noncontributing Member's Interest was decreased principal and unpaid interest on such Default Loan pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.3.02(c),
Appears in 1 contract
Sources: LLC Operating Agreement
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members (i) by either Member if the same is a Protective Capital Call, or (ii) as reasonably determined by the Management Committee, by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures for the Property or the Company. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called multiplied by each Member's then current Percentage Interest. Such additional Capital Contributions 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) If a Member (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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty percent (20%) per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare 's interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's defaultright to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a making of any 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 for U.S. federal income tax purposes, to treat the non-failing 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-failing Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Total Investment solely for purposes of determining the Member's Percentage Interest, by one and one-half of the amount of the Default Amount, and (ii) to 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 remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause returned within ten (a10) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretodays.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement 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, or (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 such 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No (a) If at any time or from time to time the Board of Managers (or, with respect to a Credit Agreement Cure Call, any Member holding a Percentage Interest of 10% or more) determines that additional funds are necessary or desirable to meet the obligations or needs of the Company or any Subsidiary, the Board of Managers may request that the Members make Additional Capital Contributions on a pro rata basis in accordance with their relative Percentage Interests. Any such request shall be obligated to make additional capital contributions to in writing, and shall state the Company. If the Managing Member, with the concurrence of Members holding a majority in interest aggregate amount of the Companyfunds requested, shall determine there shall be each Member's pro rata share thereof (based upon Percentage Interests), and a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days brief description of notice the proposed use of such requirement, each Additional Capital Contributions. Each Member may, but shall not be obligated toat its option, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest its pro rata share of the Contributing Members (i) to make a capital contribution equal to the funds requested. Any Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans Capital Contributions made pursuant to this Section 7.2 4.02(a) shall bear interest at be made by wire transfer of funds to a Company account designated by the Default RateBoard of Managers on or before a date designated by the Board of Managers in such notice (the "Contribution Date").
7.3 Upon (b) If any one or more Members (each a "Non-Contributing Member") does not timely make its pro rata share of any capital contribution (or any portion thereof) requested pursuant to Section 4.02(a) hereof, all the making other Members that have made their pro rata portion of such capital contribution (such other Members, the "Contributing Members") may (i) contribute the Non-Contributing Members' pro rata share of such requested capital contributions or (ii) in the event of a capital contribution Credit Agreement Cure Call, loan to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent Non-Contributing Members' pro rata share of the quotient of (i) the Additional Contribution not made such requested capital contributions, which loan will be evidenced by a promissory note issued by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon Company in the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of such loan with interest at a rate of 15% per annum (or, if lower, the maximum rate permitted by applicable law), a maturity date of ten (10) years after the making of such loan, all Capital Contributions made by principal and interest coming due at maturity, mandatory prepayments (applied first to accrued but unpaid interest and then to principal) from any amounts that otherwise would be available for distribution to the Members under Sections 6.03 or 6.05 (including the Additional Contributions received by the Companybut not Section 6.04), and provision for prepayment at any time at the option of the Company (b) such action to be taken by delivery, within five Business Days after the Contribution Date, of notice to such effect to the Company and the Non-Contributing Members' Interest , and any election hereunder shall be increased taken as determined by adding thereto an amount equal to the percentage by which the Noncontributing Member's a Majority-in- Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of consummated within ten Business Days after the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoContribution Date).
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement (Bh Re LLC)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with Manager determines that additional funds are needed for the concurrence of Members holding a majority in interest working capital of the Company, the Manager may obtain additional capital by making a capital call on the Members and the following provisions shall determine there apply:
3.3.1 The Manager shall issue a written notice of capital request (Notice of Capital Request) to each Member to contribute additional capital to the Company in an amount and form the Manager shall determine. The Notice of Capital Request shall include the following information:
a. the total amount of capital requested from all of the Members (Total Capital Request)
b. each Member’s share of the Total Capital Request, which shall be determined by multiplying the Total Capital Request by a Required Amount for any Company purposefraction, includingthe numerator of which shall be the number of Shares owned by the Member and the denominator of which shall be the total number of Shares owned by all Members (Member Capital Contribution)
c. the date on or before which the Member Capital Contribution shall be due, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but which the date shall not be obligated toless than 30 days from the date of the Notice of Capital Request Should any Member neglect, fail, or refuse to timely contribute to any portion of the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above Member’s Capital Contribution (the "Noncontributing Delinquent Member"), then, all the Members shall be so long as any other notified by the Manager (Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"Notice), any Contributing Member and the other Members who have paid their Member’s Capital Contribution in full (Nondelinquent Members) shall have the option (a) to contribute the Delinquent Member’s Capital Contribution on a Pro-Rata Basis in accordance with the consent then-respective Shares of a majority in interest each other Nondelinquent Member as compared to the total Shares of all Nondelinquent Members. If any Nondelinquent Member neglects, fails, or refuses to contribute its pro-rata share of the Contributing Members (i) to make a capital contribution equal to the Additional Delinquent Member’s Capital Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent within 30 days of each Contributing Member, to declare the Company terminated as a result its receipt of the Noncontributing Member Notice, all other Nondelinquent Members shall have the right to contribute the remaining deficiency in the Delinquent Member's default’s Capital Contribution on a Pro-Rata Basis (for all the other Nondelinquent Members and in the manner provided above). In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member This procedure shall be permitted repeated until the Delinquent Member’s Capital Contribution is satisfied or all Nondelinquent Members fail to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Ratecontribute any additional capital.
7.3 Upon 3.3.2 On the making of a capital contribution to the Company pursuant to Section 7.2an additional Capital Contribution, the Interest Shares of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) so that the Noncontributing Shares of each Member and each Member's Interest ’s Capital Account shall be decreased (but not below zeroadjusted in accordance with section 1.4(d) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to before the Company, notwithstanding any agreement, representation, intention, indication or otherwise to additional Capital Contribution and then shall equal an amount determined by the contrary.following formula: (Capital Account of each Member’s additional Capital Contribution / Total Capital Accounts of all Members after additional Capital Contribution) x Total Shares
Appears in 1 contract
Sources: Operating Agreement
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Managers by written notice to the Members from time to time as and to the extent capital is necessary to effect an investment or expenditures approved by the Managers. Except as otherwise agreed by the Members, such subsequent and additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by such Member’s Percentage Interest, and 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) If a Member (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:
(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 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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty (20%) percent per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loan shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 5.2(b)(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 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;
(ii) 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 Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making Company from available Cash from Operations and Cash from Sale or Refinancing, 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(ii) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(iii) in lieu of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of remedies set forth in subparagraphs (i) or (ii), revoke its portion of such additional Capital Contribution, whereupon the Additional portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by shall be returned within ten (A10) 200% upon days with interest computed at the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required under Section 5.2 from any Member if (i) the Company or any other provision 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; provided, however, if such additional Capital Contribution is required to cure a monetary default thereunder then this Operating Agreement subsection (i) exception shall not apply, (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, or (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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company/Joint Venture Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 (a) Except as otherwise provided herein, no Member or Affiliate of any Member shall have the right or obligation to make any loan to the Company without the prior written consent of all Members. No Member shall have the right or be obligated required to make any additional Capital Contribution to the Company unless such Capital Contribution has been approved as a Major Decision; provided, however, that Managing Member or Non-Managing Member, each in its sole and absolute discretion, may elect to make additional capital contributions Capital Contributions to pay Necessary Expenses if Available Cash from Operations is not sufficient to pay for any such Necessary Expenses. If any additional Capital Contributions are approved or permitted as set forth above, then, prior to making any such contribution, one of the Members shall request in writing that the other Member fund its Membership Percentage of such additional Capital Contribution. In such event, Managing Member or Non-Managing Member shall have the right, but not the obligation, to contribute their Membership Percentage of the specified amount within thirty (30) days (or such shorter time period as may be appropriate under the circumstances, but in no event less than five (5) Business Days) after the date of receipt of notice of the request for such additional Capital Contributions. Any amounts contributed pursuant to this Subsection 3.2(a) by any Member shall be added to the Capital Account of that Member.
(b) If Managing Member or Non-Managing Member (in such instance, a “Non-Contributing Member”) does not contribute all of an additional Capital Contribution that is requested under Section 3.2(a) within the time period described in Section 3.2(a), then the contributing Member (the “Contributing Member”) shall elect either: (i) to cancel the request for the additional Capital Contribution made pursuant to Section 3.2(a) or (ii) (x) if the Non-Contributing Member does not contribute any portion of the requested additional Capital Contribution, to fund all amounts requested pursuant to Section 3.2(a) as a loan to the Company (a “Member Loan”) or (y) if the Non-Contributing Member shall have funded a portion, but not all, of the additional Capital Contribution requested from the Non-Contributing Member, to fund as an additional Capital Contribution such portion of the Capital Contribution requested from the Contributing Member the amount necessary to keep the additional Capital Contributions so made by the Members in proportion to their Membership Percentages and to fund the balance as a Member Loan to the Company. If A Member Loan shall not be deemed to be a Capital Contribution for purposes of this Agreement. Each Member Loan shall bear interest at a rate equal to the Managing Memberlower of twelve percent (12%) per annum, with compounded monthly, or the concurrence maximum rate of Members holding a majority in interest permitted by applicable law, and shall be recourse only to the assets of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 . If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other makes a Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 3.2(b), then such Member shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution receive payments with respect to the Company pursuant such Member Loan as described in Sections 4.1 and 4.2 before any distributions are made with respect to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including pursuant to Sections 3.1 and 3.2(a). The remedies provided in this Section 3.2(b) for the Additional Contributions failure of a Member to fund its share of a requested Capital Contribution shall be the sole remedies available with respect thereto. Nothing in this Section 3.2 shall be deemed to obligate any Member to cause any of its Affiliates to incur any Recourse Liabilities. The Company shall cause each of the Operating Companies to defer and accrue without remedy or recourse against the applicable Operators except to income actually received by such Operators, any rent and additional rent due under the CompanyLexington Master Lease, or Greenville Master Lease, as the case may be, that is in excess of the amount of the monthly normally accruing payment of principal, interest and reserves under the Senior Loan (the “Loan Payment Excess”) and the payment or contribution by any Member of all or any portion of the Loan Payment Excess shall be a nullity and not be, or deemed or construed to be, the payment of any Necessary Expenses, or a Member Loan (nor to avoid all doubt, a Capital Contribution), and (b) such payment or contribution shall not affect in any manner, any calculation or determination of any return on investment, annual return upon and in respect to any Unreturned Capital Contribution, or considered in determining or calculating any distributions hereunder or in determining or calculating the Contributing Members' Interest shall be increased financial performance by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased applicable RSC Manager pursuant to clause (a) above. Upon the fourth and each subsequent failure Section 1301.8 of the Noncontributing Management Agreement attached hereto as Exhibit C, or any substantially similar provisions in any subsequent RSC Management Agreement, or in any other agreement between or among the Managing Member to make an Additional Contribution or any one of its Affiliates, on one hand and Non-Managing Member or any one of its Affiliates, on the other hand (but does not cure or prevent what would otherwise be a event giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretofinancial performance termination under any such RSC Management Agreement).
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with Subject to the consent of a majority in interest approval of the Contributing Majority Member in accordance with Section 7.02(a), in addition to their Initial Capital Contributions, from time to time, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Percentage Interests, as determined by the Board from time to time to be reasonably necessary to pay any operating, capital, or other expenses relating to the Business and (such additional Capital Contributions, the “Additional Capital Contributions”); provided, that such Additional Capital Contributions shall not exceed the corresponding amounts expressly provided for in the then approved Budget. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Board making of a capital contribution such determination to call for Additional Capital Contributions, the Board shall deliver to the Company pursuant to Section 7.2, the Interest Members a written notice of the Noncontributing Member and the Contributing Members Company’s need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member’s pro rata share of such aggregate amount of Additional Capital Contributions made by the Members (including the Additional Contributions received by the Companybased upon such Member’s Percentage Interest), and (iv) the date (which date shall not be less than sixty (60) Business Days following the date that such notice is given) on which such Additional Capital Contributions shall be required to be made by the Members.
(b) If any Member shall fail to timely make, or notifies the Contributing Members' Interest other Members that it shall not make, all or any portion of any Additional Capital Contribution which such Member is obligated to make under Section 3.03(a), then such Member shall be increased by adding thereto an amount equal deemed to be a “Non-Contributing Member.” A Member that is not a Defaulting Member (a “Contributing Member”) shall be entitled, but not obligated, to loan to the percentage Non-Contributing Member, by which contributing to the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure Company on its behalf, all or any part of the Noncontributing amount (the “Default Amount”) that the Non-Contributing Member failed to make contribute to the Company (each such loan, a “Default Loan”); provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. The proceeds of such Default Loan shall be treated as an Additional Capital Contribution giving rise by the Non-Contributing Member.
(i) 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 (i) fifteen percent (15%) per annum and (ii) the maximum rate permitted at law (the “Default Rate”). Default Loans shall be repaid out of any distributions that would otherwise be made to the application of this Non-Contributing Member, as more fully provided in Section 7.33.03(c); provided, that, so long as a majorityDefault Loan is outstanding, the Non-in-interest of the Contributing Members Member shall have the option, exercisable right to repay it (together with interest then due and owing) in their sole discretion, whole or in part. Upon a repayment in full of a Default Loan made to cause the remaining Interest of the Noncontributing a Non-Contributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members any unpaid Default Amount (together with interest accrued thereon as provided in Section 3.03(c)), such Non-Contributing Member shall (so long as it does not have any other outstanding Default Loans and is not otherwise a Non-Contributing Member with respect to any other Additional Capital Contributions) cease to be a Non-Contributing Member.
(c) Notwithstanding any other provisions of this Agreement, any amount that otherwise would be paid or distributed to a Non-Contributing Member pursuant to Section 6.01 or ARTICLE XII shall not be paid to such Non-Contributing Member but shall be deemed paid and applied on behalf of such Non-Contributing Member (i) first, to accrued and unpaid interest on all Default Loans (in the preceding sentence except order of their original maturity dates) made to such Non-Contributing Member (in the order of their original maturity dates), (ii) second, to the outstanding principal amount of such Default Loans (in the order of their original maturity dates), and (iii) third, to fund any Additional Capital Contribution of such Non-Contributing Member that has not been paid when due or funded pursuant to a Default Loan; provided that any unpaid Default Amount that is not funded pursuant to a Default Loan shall bear interest at the Default Rate (compounded monthly on the first day of each calendar month) from the date such Additional Capital Contribution was due until paid in full to the Company.
(d) Notwithstanding the foregoing, if a Non-Contributing Member fails to make its Additional Capital Contribution in accordance with Section 3.03(a), without limitation of any other rights or remedies that may be available, a Contributing Member may institute proceedings against the Non-Contributing Member, either in the Contributing Member’s own name or on behalf of the Company, to obtain payment of the Non-Contributing Member’s portion of the unpaid Additional Capital Contribution, together with interest accrued thereon at the Default Rate from the date that such Additional Capital Contribution was due until the date that such Additional Capital Contribution is made, at the cost and expense of the Non-Contributing Member.
(e) Each Member acknowledges and agrees that it would be impracticable or extremely difficult to determine the actual damages incurred by a Contributing Member as a result of a failure of a Member to fund its portion of an Additional Capital Contribution, and that the percentage multiple entitlement of a Contributing Member to exercise the remedies described in this Section 3.03 is fair and reasonable.
(f) Except as set forth in clause (i) (C) Sections 3.02, 3.03 or 3.06, neither Member shall be increased 100% for each failure of the Noncontributing Member required to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to additional Capital Contributions or make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns loans to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) Additional Capital Contributions may be called for from the Members by the Manager from time to time as and to the extent capital is necessary to effect an investment. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by their respective Percentage Interest. Such additional Capital Contributions 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) If a Member (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, but subject in all events to any restrictions contained in the Loan Documents, 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 obligated credited with the amount of such Default Amount attributable to make additional capital contributions a Capital Contribution and the aggregate of such amounts shall constitute a debt owed by the Defaulting Member to the Companynon-failing Member. If Any Default Loan shall bear interest at the Managing Memberrate of twenty percent (20%) per annum, with the concurrence of Members holding a majority but in interest no event in excess of the Companyhighest 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 determine there accrue and compound on a quarterly basis. A Default Loan shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contributionprepayable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare 's interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's defaultright to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 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 Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 5.2(b)(2 ) shall not be treated as a Capital Contribution made by the Interest Defaulting Member;
(3) to make an additional Capital Contribution to the Company equal to the Default Amount whereupon the Percentage Interests of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal recalculated to the percentage equivalent of the quotient of (i) increase the Additional 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 additional Capital Contribution) and by increasing its Capital Account 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 Capital Account by one-half of the amount of the Default Amount; or
(4) in lieu of the remedies set forth in subparagraphs (1), (2) or (3), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution not made by the Noncontributing non-failing Member giving rise to application of this Section 7.3 multiplied by shall be returned within ten (A10) 200% upon days with interest computed at the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on (c) Notwithstanding the foregoing provisions of this Article 7 Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other provision Person shall be in default (or with notice or the passage of this Operating Agreement 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 Contribution on account thereof, then any contributions or returns 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, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
Additional Capital Contributions. 7.1 No Member (a) Additional Capital Contributions (“Additional Capital Contributions”) may be called for from the Members by the Manager, upon unanimous prior written approval by the Members, from time to time as and to the extent capital is necessary. Such Additional Capital Contributions shall be obligated requested in an amount for each Member equal to make additional capital contributions the product of the amount of the aggregate Capital Contribution called for multiplied by that Member’s Percentage Interest, as defined in Section 4.3. 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. If The provisions of this Section [__] are intended to benefit the Managing MemberMember and the Special Members and, with to the concurrence of Members holding a majority in interest fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each and the Member may, but and the Special Member shall not be obligated to, contribute have any duty or obligation to any creditor of the Company to make any contribution to the Company his Additional Contributionor to issue any call for capital pursuant to this Agreement.
7.2 (b) If a Member (a “Defaulting Member”) fails to make his Additional Contributiona Capital Contribution that is required as provided in Section 4.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “Default Amount”), then the other Members, provided that they have each made the Capital Contribution required to be made by it, in addition to any other remedies each may have hereunder or at law, shall have one or more of the following remedies:
(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 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-failing Member. Any Default Loan shall bear interest at the rate of eighteen percent (18%) 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 pre-payable, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as at any other Member time or from time to time without penalty. Any such Default Loans shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) be with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal full recourse to the Additional Contribution not made Defaulting Member and shall be secured by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Defaulting Member, to declare ’s interest in the Company terminated as a result of the Noncontributing including, without limitation, such Defaulting Member's default’s right to Distributions. In furtherance thereof, upon the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a 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 account behalf of the Noncontributing Member, each such Contributing a Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 4.2(b)(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 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 in the Company; or
(ii) 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-defaulting Member and which loan shall bear interest at the Default Rate.
7.3 Upon Loan Rate and be payable on a first priority basis by the making 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 a capital contribution such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 7.2, 4.2(b)(ii) shall not be treated as a Capital Contribution made by the Interest Defaulting Member; or
(iii) in lieu of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of remedies set forth in subparagraphs (i) or (ii), revoke its portion of such Additional Capital Contribution, whereupon the Additional portion of the Capital Contribution not made by the Noncontributing non-defaulting Member giving rise to application of this Section 7.3 multiplied by shall be returned within ten (A10) 200% upon days with interest computed at the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received Default Loan Rate by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Medalist Diversified REIT, Inc.)
Additional Capital Contributions. 7.1 No (a) If additional Capital Contributions are required by the Company (as reasonably determined by the Manager), the Manager shall give written notice to the Members ("Participation Notice"). The Participation Notice shall specify the amount of the Capital Contribution, and date such contribution is required. Each Member (other than the Manager if it is a Member) must notify the Manager in writing within thirty (30) days of the receipt of the Participation Notice if such Member wishes to contribute such capital. If no written response agreeing to participate has been received by the Manager from a Member within such 30-day period, the Member shall be obligated deemed to make have refused to participate. Capital shall be contributed through the purchase of additional capital contributions to the CompanyUnits. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, The Manager shall determine there the number of Units to be purchased and the price per Unit, which shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days the Participation Notice. Members must agree to purchase all or none of notice of the Units allocable to such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other . Each Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred be offered the opportunity to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent purchase a proportionate number of a majority in interest of the Contributing Members (i) to make a capital contribution Units equal to the Additional Contribution not made total number of Units offered multiplied by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of fraction (i) the Additional Contribution not made numerator of which is the number of Units then owned by the Noncontributing such Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount denominator of which is the total number of Units owned by all Capital Contributions made by Members. The closing of the proposed sale of Units to the Members shall be on the closing date and on the terms and conditions stipulated in the Participation Notice, provided that the Manager may extend the closing date specified in the Participation Notice to a date that is not later than one hundred twenty (including 120) days from the Additional Contributions received by date of the CompanyParticipation Notice. If the proposed sale is not completed within one hundred twenty (120) days from the date of the Participation Notice, the Company may not issue Units of the Company without again complying with this Section 3.3(a), and .
(b) the Contributing Members' Interest shall be increased by adding thereto an amount equal Notwithstanding anything to the percentage by which the Noncontributing Member's Interest was decreased contrary in Section 3.3(a), if Tollgate refuses to participate after receiving a Participation Notice pursuant to clause Section 3.3(a):
(ai) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3Century may elect, a majority-in-interest of the Contributing Members shall have the option, exercisable in their its sole discretion, to cause the remaining Interest fund all or a portion of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members Tollgate's Capital Contribution as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) Tollgate's Participation Notice, in which case Century shall be increased 100% for each failure issued a portion of the Noncontributing Member Units corresponding to make an such Capital Contributions as detailed in the Participation Notice and Tollgate shall be issued the remaining Units corresponding to such Capital Contribution as detailed in the Participation Notice such that the Initial Company Equity held by Tollgate shall be reduced using the following table: ------------------------------------------------- ----------------------------- Additional ContributionCapital Not Reduction of Tollgate's Intitial Contributed by Tollgate Determined Company Equity* on a Cumulative Basis ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- xxxxx xxxx xxxxxxx xx xx xxxx ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- xxxx xx xxxx xxxxxxx xx xx xxxx ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- xxxx xx xxxx xxxxxxx xx xx xxxx ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- xxxx xx xxxx xxxxxxx xx xx xxxx ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- xxxx xx xxxx xxxxxxx xx xx xxxx ------------------------------------------------------------------------------- Such issuance of Units shall not affect the respective Capital Accounts of Tollgate or Century. An example Notwithstanding the foregoing, if the primary purpose of the operation Capital Contribution is to improve the interest rate or terms of the Company's initial ------------------ Determined proportionately based on the ratio that capital not contributed bears to $1.0 million. financing of up to $27.5 million to finance project construction from the terms proposed by Innovation Capital as of the date of this Agreement, no such dilution shall occur.
(ii) If Century does not elect to fund all or a portion of Tollgate's Capital Contribution as set forth in Tollgate's Participation Notice pursuant to Section 7.3 3.3(b)(i), the Manager, in its sole discretion, may elect either (x) to not issue additional Units to any Member pursuant to Section 3.3(a) or (y) to issue sufficient Units to Tollgate (despite its refusal to participate after receiving a Participation Notice pursuant to Section 3.3.(a)) such that Tollgate's Interest is not reduced.
(c) Notwithstanding Section 3.3(a) or Section 3.3(b), any proposed additional Capital Contributions that cause the total equity contributed to and funded debt issued by the Company to exceed [$47.9] million shall require Tollgate's consent, which shall not be unreasonably withheld or delayed, and dilution percentages for a failure to participate in such Capital Contributions shall be negotiated in good faith by Tollgate and Century within sixty (60) days of the date on which the Manager delivers a Participation Notice; provided that if Tollgate and Century are unable to agree on dilution percentages within sixty (60) days after the Manager delivers a Participation Notice, the dilution percentages for excess Capital Contributions shall equal the percentage set forth in Section 3.3(b) hereof (with respect amounts in excess of $5.0 million carrying the same dilution of up to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, 2.0% as is set forth in Schedule B attached heretothe "$4.0 million to $5.0 million" table in such section).
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Century Casinos Inc /Co/)
Additional Capital Contributions. 7.1 No Member a. If, at any time and from time to time, during the term of the Company, the Manager determines that the Company needs additional funds to accomplish any of the purposes of the Company, including, but not limited to, capital improvements, tenant improvements, operating deficits, brokerage commissions to be paid and debt service obligations to be met, or acquisition of any additional property as provided in Section 1.03 a. hereof, the Manager shall so inform the Investment Committee, whereupon the Investment Committee may decide to send a Capital Call Notice (as hereinafter defined) to the Members pursuant to the provisions of Section 2.02 b. hereof. If the Investment Committee sends such Capital Call Notice, the Members shall be required to make such additional capital contributions hereunder pursuant to the provisions of such Capital Call Notice. Nothing in this Section 2.02 a. shall be construed as prohibiting the Investment Committee from deciding to borrow the required additional capital needed hereunder instead of requiring additional capital contributions from the Members.
b. The Investment Committee, once it has unanimously decided to require additional capital contributions from the Members pursuant to Section 2.02 a. hereof, shall cause the Manager to send a written notice to each of the Members (the "Capital Call Notice"). The Capital Call Notice shall state (i) the total amount of cash required, (ii) each Member's share of such required cash (which shall be based on each Member's respective Applicable Percentage), and (iii) the date by which each Member is obligated to contribute its share of such required cash (which shall not be earlier than twenty (20) days from the date the Capital Call Notice was sent).
c. The obligations of the Members to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, under this Agreement shall determine there shall only be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest of the Contributing Members (i) to make a capital contribution equal to the Additional Contribution not made enforceable by the Noncontributing Members and not by creditors of any Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's defaultany third party. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making any creditor of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor succeeds to all or a portion of the Company may rely on Membership Interest of a Member, the foregoing provisions of other Member shall thereupon be released from all further obligations under this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrarySection 2.02.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ramco Gershenson Properties Trust)
Additional Capital Contributions. 7.1 No (a) The Members shall make additional Capital Contributions in cash (unless otherwise determined by the Board of Directors), in proportion to their respective Membership Interests, in such amounts and at such times as set forth in the Budget, as it may be amended from time to time (such additional Capital Contributions, the “Additional Capital Contributions”). Notwithstanding the foregoing, the Board of Directors shall be authorized to call for Additional Capital Contributions in an amount up to 20% in excess of the corresponding amounts set forth in the Budget, which amounts shall also constitute Additional Capital Contributions.
(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 which such Member is obligated to make under Section 3.2(a), then such Member shall be obligated deemed to make additional capital contributions be a “Non-Contributing Member”. The non-defaulting Member (the “Contributing Member”) shall be entitled, but not obligated, to loan to the Company. If the Managing Non-Contributing Member, with by contributing to the concurrence of Members holding a majority in interest Company on its behalf, all or any part of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen amount (15the “Default Amount”) days of notice of such requirement, each that the Non-Contributing Member may, but shall not be obligated to, failed to contribute to the Company his (each such loan, a “Default Loan”), provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution.
7.2 If . Such Default Loan shall be treated as an Additional Capital Contribution by the Non-Contributing Member. 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 (i) 15% per annum or (ii) the maximum rate permitted at law (the “Default Rate”). Each Default Loan shall be recourse solely to the Non-Contributing Member’s Membership Interest. Default Loans shall be repaid out of the distributions that would otherwise be made to the Non-Contributing Member under Article 6, as more fully provided for in Section 3.2(c). So long as a Default Loan is outstanding, the Non-Contributing Member fails shall have the right to make his Additional Contribution, repay the Default Loan (and interest then due and owing) in whole or in part, as required . Upon the repayment in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "full of all Default Loans made in respect of a Non-Contributing Member"), any such Non-Contributing Member shall have cease to be a Non-Contributing Member.
(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 6 shall not be paid to the option (a) with the consent Non-Contributing Member but shall be deemed paid and applied on behalf of a majority in interest of the such Non-Contributing Members Member (i) first, to make a capital contribution equal to accrued and unpaid interest on all Default Loans (in the Additional Contribution not made by the Noncontributing Member or order of their original maturity date), (ii) second to make the principal amount of such Default Loans (in the order of their original maturity date) and (iii) third, to any Additional Capital Contribution of such Non-Contributing Member that has not been paid and is not deemed to have been paid.
(d) In the event a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that has been outstanding for more than one six (6) months, the Contributing Member desires may elect to make an Additional Contribution, or is permitted to make a Default Loan, on account of convert the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear principal and accrued and unpaid interest at under the Default Rate.
7.3 Upon the making of a capital contribution Loan into additional Membership Interests by written notice to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Non-Contributing Members Members. Upon receipt of written notice of such election by the Contributing Member: (i) the Default Loan shall be adjusted as follows:
(a) converted into an Additional Capital Contribution by the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom Contributing Member in an amount equal to the percentage equivalent of principal and unpaid interest on the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionDefault Loan, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount Non-Contributing Member will be deemed to have received a distribution pursuant to Article 6 of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which principal and unpaid interest on the Noncontributing Member's Interest was decreased pursuant Default Loan, (iii) such distribution will be deemed paid to clause (a) above. Upon the fourth and each subsequent failure Contributing Member in repayment of the Noncontributing Default Loan, and (iv) the amount will be deemed contributed by the Contributing Member to make as an Additional Contribution giving rise Capital Contribution, the Contributing Member’s Capital Account will be increased by, and the Non-Contributing Member’s Capital Account will be decreased by, an amount equal to the application of this Section 7.3, a majority-in-principal and unpaid interest on the Default Loan. The Company shall revise Schedule A to reflect the increase in the Membership Interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoaccordingly.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement (Propell Technologies Group, Inc.)
Additional Capital Contributions. 7.1 No Member (a) 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 shall the aggregate amount of such Additional Capital Contributions exceed ten percent (10%) of the amount of such Member’s initial Capital Contribution set forth on the Member’s Schedule. Any such Additional Capital Contributions shall be obligated made by the Members pro rata in proportion to make additional capital contributions 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 five (5) Business 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 Managing 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, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute by contributing to the Company his 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, and 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.
7.2 If (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 fails shall have the right, at any time, to make his Additional Contribution, repay the Contribution Default Loan (and all accrued interest thereon) in whole or in part, part and without penalty. Upon the repayment in full of all Contribution Default Loans (but not upon their conversion as required provided in Section 7.1 above 4.2(d)) made in respect of a Defaulting Member (the "Noncontributing Member"), then, and so long as any other the Defaulting Member is not otherwise a Defaulting Member), such Defaulting Member shall make his Additional cease to be a Defaulting Member.
(d) At any time after the date that is ninety (90) days after the date a Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member")Default Loan is made, any Contributing Member shall have at the option (a) with the consent of a majority in interest of the Contributing Members applicable Non- Defaulting Member, (i) to make a capital contribution equal to the Additional such Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make shall be converted into an Additional Contribution, or is permitted to make a Default Loan, on account Capital Contribution of the Noncontributing Member, each such Contributing Non-Defaulting Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent 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 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 Non- Defaulting Member making (or deemed making) such Cram-Down Contribution as of the quotient date such Cram-Down Contribution is made or the date on which such Contribution Default Loan is converted to a Cram-Down Contribution.
(e) At the time of a Cram-Down Contribution, (i) the Additional Contribution not made number of Units held by the Noncontributing Defaulting Member giving rise shall be automatically reduced by such number of Units that bears the same ratio to application the number of this Section 7.3 multiplied Units held by (A) 200% upon the first failure of Defaulting Member as the Noncontributing Member Cram-Down Contribution bears to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members Defaulting Member throughout the term of the Company determined as of the date the Cram-Down Contribution is made but prior to the Cram-Down Contribution (including such number of Units, the Additional Contributions received by the Company“Cram-Down Units”), and (bii) the Contributing Members' Interest number of Units held by a Non-Defaulting Member who made a Cram-Down Contribution shall be correspondingly increased by adding thereto an amount equal to the percentage by which Cram- Down Units and the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) additional Units resulting from such increase shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoUnits.
7.4 (f) The obligations of the Members contained in this Section 7 are personal rights and run only to the benefit remedies of the Company and the Members pursuant to this Section 4.2 are the exclusive rights and may not be enforced by remedies, whether at law or in equity, against any third parties. No creditor of Defaulting Member for the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement failure to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryAdditional Capital Contributions.
Appears in 1 contract
Additional Capital Contributions. 7.1 No (a) If at any time or from time to time after all of the Initial Capital Contributions have been contributed, the Managing Member shall be obligated 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, (ii) to make additional capital contributions meet the ongoing obligations, liabilities, Operating Expenses or reasonable business needs of the Company in accordance with the then applicable Approved Budget or Operating Plan, 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 Company. If extent not covered by the Initial Capital Contributions, or (iii) for any other purpose Approved by BH, the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen Member may (15) days of notice of such requirement, each Member may, but shall not be obligated to), request that each of the Members contribute its pro rata share (based upon the Contribution Percentages of the Members at the time of such request) of such Shortfall (any such contribution, an “Additional Capital Contribution”). If so requested by the Managing Member or a Member pursuant to the Company his Additional Contributionforegoing 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).
7.2 (b) Notwithstanding anything to the contrary contained herein, a failure by any Member to make any Additional Capital Contribution to the extent required or requested hereunder shall not constitute an Event of Default by such Member and the sole consequences of such failure shall be as set forth in this Section 4.2. If a Member BH or MP (the “Non-Contributing Party”) fails to timely make his all or any portion of any Additional Contribution, in whole or in part, Capital Contribution as required in requested pursuant to Section 7.1 4.2(a) above and the other party (the "Noncontributing Member"), then, so long as “Contributing Party”) makes all of its share of any other Member shall make his Additional Capital Contribution as provided herein (each requested pursuant to Section 4.2(a) above, then the Contributing Party may make the full amount of such Member making his Additional Capital Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest on behalf of the Non-Contributing Members Party (any such Capital Contribution by a Contributing Party, a “Substitute Contribution”). In such an event, the Contributing Party may elect by written notice given within five (5) Business Days of making the Substitute Contribution either (i) to make a capital contribution equal to treat the Additional Contribution not made entire amount contributed by the Noncontributing Member 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 make a Default Loan equal to treat the Additional Substitute Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result 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 Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members Party shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount to equal to the percentage equivalent of the quotient of determined by dividing:
(i) the Additional Contribution not 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 Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing other Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by 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 all Unreturned Capital Contributions made 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 the date on which its missed Additional Capital Contribution (the “Missed Contribution”) was due in order to cure its failure to make such Missed Contribution by depositing into an account designated by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto Party an amount equal to the percentage amount of 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 Noncontributing Member's Interest was decreased Contributing Party if and to the extent the Contributing Party made a Substitute Contribution on account of the Missed Contribution. If the 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 Contribution shall be unwound, and the payment, dilution and transfers described above shall not be 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 clause this Agreement, the other Members will suffer substantial damages and the remedy provisions set forth above are fair, just and equitable in all respects.
(af) above. Upon All Capital Contributions shall be made by wire transfer of funds to accounts designated by the fourth and each subsequent failure Managing Member from time to time.
(g) Notwithstanding anything to the contrary in this Agreement, if MP’s Contribution Percentage is reduced below five percent (5%) as a result of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation provisions of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations 4.2 after expiration of the Members contained in this Section 7 are personal and run only cure period above, then MP shall have no right to vote on or Approve any Major Decision, the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 Budget, or any other provision of this Operating Agreement to make any contributions matter which may or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrarycould result in a Deadlock Event.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Additional Capital Contributions. 7.1 (a) No Member shall be responsible for, or obligated to make additional provide for, capital contributions to requirements and expenses of the Company. If Company in excess of their Initial Capital Contribution.
(b) Upon the Managing Member, with the concurrence vote of Members holding a majority in interest eighty-five percent (85%) of the Membership Interests of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, the Manager may request Additional Capital Contributions from each Member mayby way of written notice stating the amount of additional funds required, but shall not the purpose therefore, and the date upon which Additional Capital Contributions may be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing made by each Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing . Each Member shall have the option (a) right to make their pro rata share of the Additional Capital Contribution in accordance with their Membership Interest at the consent time specified in such notice. If any Member does not make the full amount of their share of a majority in interest requested Additional Capital Contribution within ten (10) days after the expiration of the Contributing Members time specified in such notice, the Manager shall send a written notice to each Member specifying the amount not contributed (i) the “Non-Contribution Notice”). Each Member shall have the right to make the Additional Capital Contribution requested from the non-contributing Member on a capital contribution equal pro rata basis in accordance with their Membership Interests or as they otherwise agree by sending a written notice to the Manager within (5) days of the Member’s receipt of the Non-Contribution Notice indicating the Member’s interest to contribute a portion of the non-contributing Member’s Additional Capital Contribution. (the “Portion Notice”). The value of the Membership Interest for the Additional Capital Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted based on the lower of the Company’s Net Book Value or its fair market value as reasonably determined by the Board in its sole discretion immediately preceding the Additional Capital Contribution. If the Board determines that the Company needs additional funds, but determines not to participate in proportion request Additional Capital Contributions, the Board may cause the Company to their respective Interests. All loans made pursuant borrow such funds from any Person, including any Member, upon such terms and conditions as may be agreed to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution time. No such loan to the Company pursuant to Section 7.2, the Interest of the Noncontributing from a Member and the Contributing Members shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal deemed to the percentage equivalent of the quotient of (i) the Additional constitute a Capital Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and shall not increase the Members and may not be enforced by any third parties. No creditor Capital Account of the Company may rely on Member making the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contraryloan.
Appears in 1 contract
Additional Capital Contributions. 7.1 No 6.4.1 If the Manager at any time or from time to time determines that the Company requires Additional Capital Contributions, then the Manager shall give notice to each Member of (i) the total amount of additional Capital Contributions required, (ii) the reason the additional Capital Contribution is required, (iii) each Member's proportionate share of the total additional Capital Contribution (determined in accordance with this Section), and (iv) the date each Member's Additional Capital Contribution is due and payable, which date shall be no less than ten (10) days after the notice has been given. A Member's share of the total Additional Capital Contribution shall be equal to the product obtained by multiplying the Member's Percentage Interest and the total Additional Capital Contribution required. Each Member's share of the Additional Capital Contribution shall be payable in cash or by certified check, or wire transfer.
6.4.2 Notwithstanding anything herein to the contrary, no Member shall be obligated required to make additional capital contributions any Additional Capital Contribution to the Company. .
6.4.3 If a Member fails to pay when due all or any portion of any Additional Capital Contribution required under Section 6.4.1 (each, a “Non-Contributing Member”), then each Member other than any Non-Contributing Member (each, a “Contributing Member”) shall have the Managing Memberright, but not the obligation, to contribute to the Company (in addition to its initial pro rata share of the Additional Capital Contribution) its pro rata portion of those amounts that the Non-Contributing Member fails to contribute (the “Remaining Contribution”), and the Manager shall have the right to re-allocate the Percentage Interests based on the then Capital Contributions made by the Contributing Members and Non-Contributing Members.
6.4.4 Each Member shall receive a credit to his/her/its Capital Account in the amount of any Additional Capital Contribution which he/she/it makes to the Company and shall receive such other rights as have been approved by the Manager in connection with such Additional Capital Contribution in accordance with the concurrence terms of Members holding a majority in interest this Agreement.
6.4.5 Immediately following any Additional Capital Contribution, the Percentage Interests of the CompanyMembers may be adjusted if the Manager determines that the Percentage Interests of the Members are to be altered as a result of the Additional Capital Contribution, shall determine there and Exhibit “1” shall be a Required Amount for revised to reflect any Company purposesuch Additional Capital Contribution and any such adjustment of the Percentage Interests of the Members. Any revision of Exhibit “1” in accordance with the preceding sentence shall require only the consent of the Manager (and not any consent of the Members).
6.4.6 In the event any Remaining Contribution is not fully satisfied by Additional Capital Contributions of the Contributing Members, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member the Manager may, but shall not be obligated required to, contribute to the Company his Additional Contribution.
7.2 If a Member fails the amount required to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (satisfy the "Noncontributing Member"), then, so long as any other Member shall make his Additional Remaining Contribution as provided herein a loan (each such Member making his Additional a “Contribution being hereinafter referred Loan”) to as "the Non-Contributing Member"), any Contributing Member . The Manager shall have the option of obtaining a third-party loan, using its own funds, or using existing equity in the Company to fund the proceeds for any such Contribution Loan. Such Contribution Loan shall not be treated as a Capital Contribution by the Non-Contributing Member or entitle the Non-Contributing Member to an increase in its Percentage Interest. The Contribution Loan (a) with or Contribution Loans if more than one), shall each be deemed a loan owing by the consent of a majority in interest Non-Contributing Member to the Company or the Manager, as applicable. The Contribution Loan shall be repayable only out of the Contributing Members (i) to make a capital contribution equal Net Cash Flow otherwise distributable to the Additional Contribution not made by the Noncontributing Non-Contributing Member or (ii) to make a Default Loan equal which shall be paid directly to the Additional Contribution not made by Company or the Noncontributing Member or (b) with Manager, as the unanimous written consent of each Contributing Membercase may be and, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that if more than one Contributing Member desires to make an Additional Contributionone, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate then in proportion to the amounts of their respective InterestsContribution Loans, until such Company’s or the Manager’s Contribution Loan or Contribution Loans, as the case may be, and accrued and unpaid interest thereon have been paid in full. All loans made pursuant to this Section 7.2 The Contribution Loan shall bear interest at lower of 15% per annum or the Default Rate.
7.3 Upon maximum rate permitted by law and shall be on such other terms as the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member Manager and the Non-Contributing Member agree. Such Member or Members making additional Capital Contributions shall receive a Capital Account credit for each such additional Capital Contribution at the time and in the amount that such contribution is made, and Exhibits “1” and “2” shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of (i) the Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all Capital Contributions made by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure of the Noncontributing Member to make an Additional Contribution giving rise to the application of this Section 7.3, a majority-in-interest of the Contributing Members shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to be forfeited and allocated to the Contributing Members or to continue re-allocating the Interests of the Noncontributing Member and Contributing Members as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) shall be increased 100% for each failure of the Noncontributing Member to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached heretoaccordingly.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: Operating Agreement
Additional Capital Contributions. 7.1 No (a) If at any time or from time to time after all of the Initial Capital Contributions have been contributed, the Managing Member shall be obligated 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, (ii) to make additional capital contributions meet the ongoing obligations, liabilities, Operating Expenses or reasonable business needs of the Company in accordance with the then applicable Approved Budget or Operating Plan, 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 Company. If extent not covered by the Initial Capital Contributions, or (iii) for any other purpose Approved by BH, the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen Member may (15) days of notice of such requirement, each Member may, but shall not be obligated to), request that each of the Members contribute its pro rata share (based upon the Contribution Percentages of the Members at the time of such request) of such Shortfall (any such contribution, an “Additional Capital Contribution”). If so requested by the Managing Member or a Member pursuant to the Company his Additional Contributionforegoing 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).
7.2 (b) Notwithstanding anything to the contrary contained herein, a failure by any Member to make any Additional Capital Contribution to the extent required or requested hereunder shall not constitute an Event of Default by such Member and the sole consequences of such failure shall be as set forth in this Section 4.2. If a Member BH or CH (the “Non-Contributing Party”) fails to timely make his all or any portion of any Additional Contribution, in whole or in part, Capital Contribution as required in requested pursuant to Section 7.1 4.2(a) above and the other party (the "Noncontributing Member"), then, so long as “Contributing Party”) makes all of its share of any other Member shall make his Additional Capital Contribution as provided herein (each requested pursuant to Section 4.2(a) above, then the Contributing Party may make the full amount of such Member making his Additional Capital Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with the consent of a majority in interest on behalf of the Non-Contributing Members Party (any such Capital Contribution by a Contributing Party, a “Substitute Contribution”). In such an event, the Contributing Party may elect by written notice given within five (5) Business Days of making the Substitute Contribution either (i) to make a capital contribution equal to treat the Additional Contribution not made entire amount contributed by the Noncontributing Member 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 make a Default Loan equal to treat the Additional Substitute Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Member, to declare the Company terminated as a result 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 Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Interests. All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the making of a capital contribution to the Company pursuant to Section 7.2, the Interest of the Noncontributing Member and the Contributing Members Party shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount to equal to the percentage equivalent of the quotient of determined by dividing:
(i) the Additional Contribution not 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 Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing other Member to make an Additional Contribution, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by 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 all Unreturned Capital Contributions made 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 the date on which its missed Additional Capital Contribution (the “Missed Contribution”) was due in order to cure its failure to make such Missed Contribution by depositing into an account designated by the Members (including the Additional Contributions received by the Company), and (b) the Contributing Members' Interest shall be increased by adding thereto Party an amount equal to the percentage by which the Noncontributing Member's Interest was decreased pursuant to clause (a) above. Upon the fourth and each subsequent failure amount of the Noncontributing Missed Contribution together with interest thereon at a eighteen percent (18%) per annum rate (or the maximum rate allowed by applicable law, if lower) from the due date established by the Managing Member to make an Additional Contribution giving rise to the application of this Section 7.3until such amount has been so deposited in full into such account, a majority-in-interest of the Contributing Members at which point such amount shall have the option, exercisable in their sole discretion, to cause the remaining Interest of the Noncontributing Member to promptly be forfeited and allocated distributed to the Contributing Members or Party if and to continue re-allocating the Interests extent the Contributing Party made a Substitute Contribution on account of the Noncontributing Member Missed Contribution. If the Non-Contributing Party makes such deposits as aforesaid, any adjustment to Contribution Percentages, dilution of the Promote Percentages (and Contributing Members as provided the distributions affected thereby) and transfers of Unreturned Capital Contributions caused by its failure to make the applicable Additional Capital Contribution shall be unwound, and the payment, dilution and transfers described above shall not be reflected in the preceding sentence except Members’ Capital Accounts.
(e) Each Member acknowledges and agrees that the percentage multiple set forth in clause other Members would not be entering into this Agreement were it not for (i) (C) shall be increased 100% for each failure of the Noncontributing Member Members agreeing to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained Capital Contributions provided for in this Section 7 are personal 4.2, and run only to (ii) the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing remedy provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.set forth above in
Appears in 1 contract
Sources: Limited Liability Company Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Additional Capital Contributions. 7.1 No Member shall be obligated to make additional capital contributions to the Company. If the Managing Member, with the concurrence of Members holding a majority in interest of the Company, shall determine there shall be a Required Amount for any Company purpose, including, without limitation, those purposes set forth in Article 5, then within fifteen (15) days of notice of such requirement, each Member may, but shall not be obligated to, contribute to the Company his Additional Contribution.
7.2 If a Member fails to make his Additional Contribution, in whole or in part, as required in Section 7.1 above (the "Noncontributing Member"), then, so long as any other Member shall make his Additional Contribution as provided herein (each such Member making his Additional Contribution being hereinafter referred to as "Contributing Member"), any Contributing Member shall have the option (a) with In addition to the consent of a majority in interest Initial Capital Contributions of the Contributing Members, the Members (i) to shall make a capital contribution equal to the Additional Contribution not made by the Noncontributing Member or (ii) to make a Default Loan equal to the Additional Contribution not made by the Noncontributing Member or (b) with the unanimous written consent of each Contributing Memberadditional Capital Contributions in cash, to declare the Company terminated as a result of the Noncontributing Member's default. In the event that more than one Contributing Member desires to make an Additional Contribution, or is permitted to make a Default Loan, on account of the Noncontributing Member, each such Contributing Member shall be permitted to participate in proportion to their respective Membership Interests, as determined by the Managing Member from time to time to be reasonably necessary to pay any operating, capital or other expenses relating to the Business (such additional Capital Contributions, the "Additional Capital Contributions"), provided, that such Additional Capital Contributions shall not exceed the corresponding amounts expressly provided for in the then-current Budget, as it may be amended from time to time in accordance with Section 7.06(b). All loans made pursuant to this Section 7.2 shall bear interest at the Default Rate.
7.3 Upon the Managing Member making of a capital contribution such determination for Additional Capital Contributions, the Managing Member shall deliver to the Company pursuant to Section 7.2, the Interest Non-Managing Member a written notice of the Noncontributing Member and the Contributing Members Company's need for Additional Capital Contributions, which notice shall be adjusted as follows:
(a) the Noncontributing Member's Interest shall be decreased (but not below zero) by subtracting therefrom an amount equal to the percentage equivalent of the quotient of specify in reasonable detail (i) the purpose for such Additional Contribution not made by the Noncontributing Member giving rise to application of this Section 7.3 multiplied by (A) 200% upon the first failure of the Noncontributing Member to make an Additional ContributionCapital Contributions, (B) 300% upon the second such failure and (C) 400% upon the third such failure, divided by (ii) the aggregate amount of all such Additional Capital Contributions, (iii) each Member's share of such aggregate amount of Additional Capital Contributions based upon such Member's Membership Interest, and (iv) the date (which date shall not be less than __________[NUMBER] 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 (including the Additional Contributions received by the Company), and Members.
(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 which such Member is obligated to make under Section 3.02(a), then such Member shall be deemed to be a "NonContributing Member". The non-defaulting Member (the "Contributing Member") shall be entitled, but not obligated, to loan to the NonContributing Member, by contributing to the Company on its behalf, all or any part of the amount (the "Default Amount") that the NonContributing Member failed to contribute to the Company (each such loan, a "Default Loan"), provided, that such Contributing Member shall have contributed to the Company its pro rata share of the applicable Additional Capital Contribution. Such Default Loan shall be treated as an Additional Capital Contribution by the Non-Contributing Member. 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 (i) __________[PERCENTAGE]% per annum or (ii) the maximum rate permitted at law (the "Default Rate"). [Each Default Loan shall be recourse ____________________[debt/solely to the Non-Contributing Member's Membership Interest].] 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(d). So long as a Default Loan is outstanding, the Non-Contributing Member shall have the right to repay the Default Loan (together with interest then due and owing) in whole or in part. Upon the repayment in full of all Default Loans (but not upon their conversion as provided in Section 3.02(c)) made in respect of a Non-Contributing Member (and so long as the Non-Contributing Member is not otherwise a Non-Contributing Member), such Non-Contributing Member shall cease to be a Non-Contributing Member.
(c) At any time after the date __________[NUMBER] __________[months/[OTHER TIME PERIOD]] after a Default Loan is made, at the option of the Contributing Members' Interest Member, (i) such Default Loan shall be increased by adding thereto converted into an Additional Capital Contribution of the Contributing Member in an amount equal to the percentage principal and unpaid interest on such Default Loan pursuant to this Section 3.02(c), (ii) the Non-Contributing Member shall be deemed to have received a distribution, pursuant to Article VI, of an amount equal to the principal and unpaid interest on such Default Loan, (iii) such distribution shall be deemed paid to the Contributing Member in repayment of the Default Loan, (iv) such amount shall be deemed contributed by which the Noncontributing Contributing Member as an Additional Capital Contribution (a "Cram-Down Contribution"), and (v) the Contributing Member's Interest was Capital Account shall be increased by, and the Non-Contributing Member's Capital Account shall be decreased pursuant by, an amount equal to clause the principal and unpaid interest on such Default Loan. A Cram-Down Contribution shall be deemed an Additional Capital Contribution by the Contributing Member making (aor deemed making) above. Upon the fourth and each subsequent failure such Cram-Down Contribution as of the Noncontributing Member date such Cram-Down Contribution is made or the date on which such Default Loan is converted to make an Additional Contribution giving rise to a Cram-Down Contribution. At the application time of this Section 7.3a Cram-Down Contribution, a majority-in-interest the Membership Interest of the Contributing Members Member shall have be increased proportionally by the optionamount of such contribution, exercisable in their sole discretion, to cause thereby diluting the remaining Membership Interest of the Noncontributing Non-Contributing Member. Once a Cram-Down Contribution has been made (or deemed made), no subsequent payment or tender in respect of the Cram-Down Contribution shall affect the Membership Interests of the Members, as adjusted in accordance with this Section 3.02(c).
(d) Notwithstanding any other provisions of this Agreement, any amount that otherwise would be paid or distributed to a NonContributing Member pursuant to Article VI shall not be forfeited paid to the Non-Contributing Member but shall be deemed paid and allocated applied on behalf of such Non-Contributing Member (i) first, to accrued and unpaid interest on all Default Loans (in the order of their original maturity date), (ii) second to the principal amount of such Default Loans (in the order of their original maturity date) and (iii) third, to any Additional Capital Contribution of such Non-Contributing Member that has not been paid and is not deemed to have been paid.
(e) Notwithstanding the foregoing, if a Non-Contributing Member fails to make its Additional Capital Contribution in accordance with Section 3.02(a), without limitation of any other available rights or remedies that may be available, the Contributing Member may:
(i) institute proceedings against the Non-Contributing Member, either in the Contributing Member's own name or on behalf of the Company, to obtain payment of the Non-Contributing Member's portion of the Additional Capital Contributions, together with interest thereon at the Default Rate from the date that such Additional Capital Contribution was due until the date that such Additional Capital Contribution is made, at the cost and expense of the Non-Contributing Member[; or]
(ii) elect to dissolve and liquidate the Company pursuant to Article XII[./; or]
(iii) [purchase the Membership Interest of the Non-Contributing Member at a price equal to __________[PERCENTAGE]% of the lesser of (i) the price paid by the Non-Contributing Member for its Membership Interest and (ii) the Fair Market Value of its Membership Interest][./; or]
(iv) [force a sale of the Company to a third party other than an Affiliate of any of the Members on commercially reasonable market terms as reasonably determined by the Contributing Member; provided, that if the Non-Contributing Member pays the unfunded portion of its required Additional Capital Contribution prior to the Contributing Members or Member's election of a forced sale, the Contributing Member shall no longer have the right to continue re-allocating the Interests force a sale of the Noncontributing Company under this [Section 3.02(e)(iv)].]
(f) [If a Member is characterized as a Non-Contributing Member, then, so long as the Member remains a Non-Contributing Member, it shall forfeit and Contributing Members no longer be entitled to any consent or voting rights granted in this Agreement.]
(g) Except as provided in the preceding sentence except that the percentage multiple set forth in clause (i) (C) this Section 3.02, neither Member shall be increased 100% for each failure of the Noncontributing Member required to make an Additional Contribution. An example of the operation of this Section 7.3 with respect to a re-allocation of Interests upon the first failure of a Noncontributing Member to additional Capital Contributions or make an Additional Contribution, is set forth in Schedule B attached hereto.
7.4 The obligations of the Members contained in this Section 7 are personal and run only to the benefit of the Company and the Members and may not be enforced by any third parties. No creditor of the Company may rely on the foregoing provisions of this Article 7 or any other provision of this Operating Agreement to make any contributions or returns loans to the Company, notwithstanding any agreement, representation, intention, indication or otherwise to the contrary.
Appears in 1 contract
Sources: LLC Operating Agreement