FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute all or any portion of a Required Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding. (b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions). (c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.
Appears in 13 contracts
Sources: Limited Partnership Agreement (Noble Midstream Partners LP), Limited Partnership Agreement (Noble Midstream Partners LP), Limited Partnership Agreement (Noble Midstream Partners LP)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute Member does not contribute, within 10 Days of the date required, all or any portion of a Required Capital Contribution that such Partner (a “Delinquent Partner”) Member is required to make as provided in this Agreement, thenthe other Members may cause the Company to exercise, while on notice to that Member (the "Non-Contributing Member"), one or more of the following remedies:
(i) taking such Partner is a Delinquent Partner, each nonaction (including court proceedings) as the other Members may deem appropriate to obtain payment by the Non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any Contributing Member of the portion of the Delinquent Partner’s Required Non-Contributing Member's Capital Contribution that is in default, together with interest thereon at the Default Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Non-Contributing Member;
(ii) permitting the other Members in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Non-Contributing Member's Capital Contribution that is in default, with the following results:
(A) the sum advanced constitutes a loan from the Lending Member to the Non-Contributing Member and a Capital Contribution of that sum to the Company by the Non-Contributing Member pursuant to the applicable provisions of this Agreement,
(B) the principal balance of the loan and all accrued unpaid interest thereon is due and payable in whole on the tenth Day after written demand therefor by the Lending Member to the Non-Contributing Member,
(C) the amount lent bears interest at the Default Rate from the Day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Member,
(D) all distributions from the Company that otherwise would be made to the Non-Contributing Member (whether before or after dissolution of the Company) instead shall be paid to the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal),
(E) the payment of the loan and interest accrued on it is secured by a security interest in the Non-Contributing Member's Membership Interest, as more fully set forth in Section 4.03(b), and
(F) the Lending Member has the right, in addition to the other rights and remedies granted to it pursuant to this Section 4.5. If a nonAgreement or available to it at Law or in equity, to take any action (including court proceedings) that the Lending Member may deem appropriate to obtain payment by the Non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each Contributing Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Non-Contributing Member;
(iii) exercising the rights of a secured party under the Uniform Commercial Code of the State of Delaware, as more fully set forth in Section 4.03(b); or
(iv) exercising any other nonrights and remedies available at Law or in equity. In addition, the failure to make such contributions shall constitute a Default by the Non-Delinquent PartnersContributing Member, who and the other Members shall have five (5) days thereafter the rights set forth in Article 9 with respect to elect to participate in such fundingDefault.
(b) The portion Each Member grants to the Company, and to each Lending Member with respect to any loans made by the Lending Member to that each participating nonMember as a Non-Delinquent Partner may fund Contributing Member pursuant to Section 4.03(a)(ii), as security, equally and ratably, for the payment of all Capital Contributions that Member has agreed to make and the payment of all loans and interest accrued on them made by Lending Members to that Member as a Non-Contributing Member pursuant to Section 4.03(a)(ii), a security interest in and a general lien on its Membership Rights and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. On any default in the payment of a Capital Contribution pursuant to this Section 4.5 (or in the “NDP Amount”) shall be equal to the product of (x) the delinquent amount payment of such Required Contribution multiplied by (y) a fractionloan or interest accrued on it, the numerator of which shall be Company or the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; providedLending Member, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amountas applicable, the fully participating non-Delinquent Partners shall be is entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as all the rights and remedies of a Capital Contribution, secured party under the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests Uniform Commercial Code of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application State of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner Delaware with respect to the unfunded Required Contributionsecurity interest granted in this Section 4.03(b). Each Member shall execute and deliver to the Company and the other Members all financing statements and other instruments that the Lending Member may request to effectuate and carry out the preceding provisions of this Section 4.03(b). At the option of a Lending Member, this Agreement or a carbon, photographic, or other copy hereof may serve as a financing statement.
Appears in 10 contracts
Sources: Limited Liability Company Agreement (Somerset Power LLC), Limited Liability Company Agreement (Somerset Power LLC), Limited Liability Company Agreement (Somerset Power LLC)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Company Interest and Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Company Interests of each Partner Member shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner Member with respect to the unfunded Required Contribution.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Oasis Midstream Partners LP), Limited Liability Company Agreement (Oasis Midstream Partners LP), Limited Liability Company Agreement (Oasis Midstream Partners LP)
FAILURE TO CONTRIBUTE. (a) If Upon the failure of any Member (a Partner fails “Non-Contributing Member”) to contribute pay in full all or any portion of a Required an Additional Capital Contribution that required under Section 9.3 by the date such Partner Capital Contribution is due, if any such failure continues for five (5) Business Days after such due date then, in addition to its other rights and remedies set forth herein or otherwise provided by law, the other Member who has timely funded its Additional Capital Contribution in full (a “Delinquent PartnerContributing Member”) is and has not required the Company to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a return its corresponding Additional Capital Contribution pursuant to Section 9.3(b) shall be permitted (but not obligated to) fund all or a portion of the Non-Contributing Member’s Additional Capital Contribution (the “Supplemental Funding”) as set forth in this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding9.4.
(b) The portion If both (x) Figure or Investor (but not any other Member) is the Non-Contributing Member, and (y) in respect of such failure to fund described in clause (x), Figure or Investor (but not any other Member) is the Contributing Member, then the Contributing Member shall have the right to elect (by written notice to the Company) to treat the Supplemental Funding that each participating non-Delinquent Partner may fund it makes as a Capital contribution of capital to the Company (a “Superpriority Contribution”). Any Superpriority Contribution shall earn and accrue the Superpriority Return and shall be payable from any distributions made by the Company pursuant to this Section 4.5 10.6(a). No Member shall be personally obligated to repay a Superpriority Contribution, and a Superpriority Contribution shall be payable or collectible only out of the assets of the Company. If multiple Superpriority Contributions are outstanding at any time, all payments in respect of such Superpriority Contributions and the accrued and unpaid Superpriority Return thereon shall be made in reverse order based on the date when each such Superpriority Contribution was made so that the most recent Superpriority Contribution that was made as of the date that a distribution is made by the Company (the “NDP Amount”together with all accrued and unpaid Superpriority Return thereon) shall be equal to paid first and then the product of next most recent Superpriority Contribution (xtogether with all accrued and unpaid Superpriority Return thereon) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner paid and the denominator so forth. All distributions to a Contributing Member hereunder in respect of which any Superpriority Contributions shall be the aggregate Percentage Interest held by applied first to payment of any accrued and unpaid Superpriority Return on such Superpriority Contribution and then to return such Superpriority Contribution until all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)amounts due thereunder or in respect thereof are paid in full.
(c) Notwithstanding anything in this Section 4.5 Contributing Member shall have the right to treat the Supplemental Funding as a loan (a “Member Default Loan”) to the contraryNon-Contributing Member. Except as otherwise provided by the next sentence below, the Delinquent Partner may cure Capital Account and Capital Contributions balance of the Non-Contributing Member shall be credited with the Defaulted Amount funded as a Member Default Loan, and such delinquency Member Default Loan shall constitute a debt owed by the Non-Contributing Member to the Contributing Member. Any Default Loan shall (i) by contributing its Required Contribution prior to bear interest at the Capital Contribution being made by another Partner or Default Rate, (ii) be due on or before the sixtieth (60th) day following one year anniversary of the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the on which such Member Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution Loan is advanced (the “Default Interest AmountMaturity Date”), (iii) be prepayable, in whole or in part, at any time or from time to time without penalty, (iv) be a personal obligation of Non-Contributing Member, and (v) be payable from any distributions otherwise payable to Non-Contributing Member pursuant to Section 10.6(a) and Section 13.3(c) before any distributions are made to such Non-Contributing Member pursuant to Section 10.6(a) and Section 13.3(c). Interest on a Member Default Loan to the extent unpaid shall accrue and compound quarterly. All payments or distributions to a Contributing Member hereunder in respect of any such Member Default Loan shall be applied first to payment of any interest due under any such Member Default Loan and then to principal until all amounts due thereunder are paid in full. If a Delinquent Partner cures Member Default Loan remains unpaid after its delinquency pursuant maturity date set forth above, the Contributing Member who made such loan shall have the right, exercisable by providing written notice thereof to Section 4.5(c)(ii) by making the Non-Contributing Member to convert the outstanding principal amount of such Member Default Loan, together with all accrued and unpaid interest thereon as a Make-Up Superpriority Contribution (and paying the Default Interest Amountin such case, then (A) first, such Member Default Loan shall be deemed repaid on the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that date of such participating non-Delinquent Partner funded pursuant to Section 4.5(b), conversion and (B) secondthe Capital Account and Capital Contributions balance of the Non-Contributing Member shall be debited with such converted amount); provided, that whether or not the Contributing Member exercises such right, the respective Capital Accounts and Percentage Interests of the Partners Non-Contributing Member shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer not be deemed to be a Delinquent Partner Defaulting Member hereunder or to have otherwise default under the Member Default Loan as a result of any failure repay a Member Default Loan in full by the initial maturity date; provided, further, that if the Contributing Member does not elect such right, the Maturity Date shall be deemed extended by an additional one (1) year period, it being understood that any time during such one (1) year extension period, the Non-Contributing Member shall have the right to convert the outstanding principal amount of such Member Default Loan, together with all accrued and unpaid interest thereon as a Superpriority Contribution, in accordance with this Section 9.4(c).
(d) No Non-Contributing Member shall be entitled to receive any distributions pursuant to this Agreement unless and until (x) each Member Default Loan made to such Non-Contributing Member has been paid in full (including accrued interest thereon) and (y) each Contributing Member who has made a Superpriority Contribution in respect to amounts which such Non-Contributing Member failed to fund has received the unfunded Required Contributionfull amount of such Unreturned Superpriority Contribution and the related Superpriority Return. Distributions that otherwise would be payable to the applicable Non-Contributing Member under this Agreement shall instead be paid to the applicable Member who made a Member Default Loan to such Non-Contribution Member for application towards the repayment of any outstanding Member Default Loan (first to interest, then to principal); provided, further that such amounts repaid to the Contributing Member shall be deemed distributed to such Non-Contributing Member for all purposes under this Agreement (including, without limitation, for purposes of reducing such Non-Contributing Member’s Capital Account, Unreturned Preferred Return, Unreturned Capital Contributions, Unreturned Superpriority Return and Unreturned Superpriority Contributions, as applicable).
Appears in 4 contracts
Sources: Limited Liability Company Agreement (FT Intermediate, Inc.), Limited Liability Company Agreement (FT Intermediate, Inc.), Limited Liability Company Agreement (FT Intermediate, Inc.)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute all or any portion A. Upon the failure of a Required Contribution that such Partner Common Member (a “Delinquent PartnerNon-Contributing Member”), for a period in excess of ten (10) is required days, to make its share of any required capital contribution under Section 3.2 (the portion thereof not contributed by such Non-Contributing Member being referred to herein as provided the “Deficiency”), then the other Common Members (as applicable, a “Contributing Member” or “Contributing Members”), may each, in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may its sole and absolute discretion within ten (but shall have no obligation to10) elect to fund all or any portion days after the expiration of the Delinquent Partnerforegoing ten (10) day period, in proportion to their Common Percentages or in such other percentages as they may agree, (1) loan to the Non-Contributing Member the Deficiency by depositing the same into the Operating Accounts, or (2) contribute to the Company the Deficiency by depositing the same into the Operating Accounts, which contribution shall reduce the Non-Contributing Member’s Required Contribution as a Capital Contribution Common Percentage pursuant to this Section 4.5. subsection D below.
B. If a Contributing Member proceeds under clause (1) of subsection A above, then any amounts funded by a Contributing Member shall be treated as (i) a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five recourse loan (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be called a “Default Loan”) bearing interest at the Percentage Interest then held “Default Rate” (which, as used herein, means, from time to time, the greater of (A) 20% per annum, compounded annually, or (B) 10% per annum in excess of the prime rate of interest publicly announced by Citibank, N.A., compounded annually, but not less than 15% per annum, compounded annually, but not more than the maximum amount allowable under applicable law), followed by (ii) a capital contribution by such participating nonNon-Delinquent Partner and Contributing Member to the denominator Company. Notwithstanding the provisions of Section 4.1, all distributions which would otherwise be made to the Non- Contributing Member shall be paid to the aggregate Percentage Interest held Contributing Members that made Default Loans (in proportion to the total Default Loans made by each Contributing Member to such Non- Contributing Member) until the Default Loans (and all interest thereon) have been paid in full. Any such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects payments and distributions shall be deemed to fund less than its full allocation have been distributed to the Non- Contributing Member and then turned over in payment of such amount, the fully participating non-Delinquent Partners Default Loan. All payments shall be entitled applied first to take up such shortfall interest and then to principal.
C. If a Default Loan (allocatedincluding all interest thereon) is made to ESC, it shall be due and payable within ten (10) days and if it is not fully paid when due (i.e., within ten (10) days), then an event shall be deemed to have occurred under Section 7.2A(2) entitling BREA to deliver a “Termination Notice” (as necessary, based on their respective Percentage Interestshereinafter defined). Upon Notwithstanding the foregoing, BREA shall not be permitted to deliver a Termination Notice with respect to a Default Loan that results from a Contribution Request made upon BREA’s decision pursuant to its rights under Section 5.1.C, unless such funding as a Capital ContributionContribution Request is made in connection with an emergency or for necessary capital contributions (e.g., to meet the Partnership Interest and Percentage Interest requirements of each Partner shall be appropriately adjusted any Project Financing, to reflect all such funding (based on total Capital Contributionspay any applicable taxes, to prevent physical waste to any Property).
D. If any Contributing Member proceeds under clause (c2) Notwithstanding anything in this Section 4.5 to of subsection A above, then the contrary, Common Percentages of the Delinquent Partner may cure Common Members shall be recalculated and reset as of such delinquency (i) by contributing its Required Contribution prior to time based upon the Capital Contribution being ratio of all contributions made by another Partner or (ii) on or before a Common Member to all contributions made by all of the sixtieth (60th) day following Common Members. Notwithstanding the date that the participating non-Delinquent Partner(s) satisfied the Required Contributionforegoing, however, any capital contributions which are made by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency ESC pursuant to Section 4.5(c)(ii3.5 and are attributable to distributions under the “Promote Clauses” (as hereinafter defined) by making a Make-Up Contribution and paying shall not be considered as capital contributions for purposes of the Default Interest Amount, then (A) firstforegoing calculation. To the extent that the Common Percentage of ESC is reduced under this subsection D, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), percentages set forth in clause (B2) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.of
Appears in 3 contracts
Sources: Limited Liability Company Agreement, Agreement of Purchase and Sale, Agreement of Purchase and Sale
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days Business Days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Company Interest and Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Company Interests of each Partner Member shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner Member with respect to the unfunded Required Contribution.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (BP Midstream Partners LP), Contribution, Assignment and Assumption Agreement (BP Midstream Partners LP), Limited Liability Company Agreement (BP Midstream Partners LP)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund or arrange for a 100% Affiliate to fund (or, if all other non-Delinquent Members waive their rights under this Section 5.15, to arrange for any other Person who agrees to become a Member to fund) all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.55.15. If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 5.15 (the “NDP NDM Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, at the Partnership Interest and election of the participating non-Delinquent Members holding a majority of the aggregate Percentage Interests of all participating non-Delinquent Members, either:
(i) the Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions); provided, however, that if (A) such funding is in connection with a Unilateral Capital Contribution Event or a Capital Contribution Event in which at least one EXCO Director and one Harbinger Director voted in favor thereof and (B) the Harbinger Member has not exercised the Full Special Committee Control Rights, then in addition to the dilutive effect caused by one or more Members funding the Delinquent Member’s portion of such Required Contribution as set forth in this Section 5.15, (1) the Percentage Interest of such Delinquent Member shall also be decreased by the Dilution Percentage, and (2) the aggregate Percentage Interest of the participating non-Delinquent Member(s) who funded such Required Contribution on behalf of such Delinquent Member shall be increased by the same amount on the same pro rata basis as such participating non-Delinquent Member(s) funded such Required Contribution; or
(ii) the Company shall issue to each participating non-Delinquent Member newly created, non-voting preferred Additional Units (the “NDM Units”). The NDM Units received by each funding non-Delinquent Member shall (A) have an aggregate capital account (an “NDM Capital Account”) equal to such non-Delinquent Member’s NDM Amount and (B) be entitled to receive distributions prior to all other Membership Interests in the Company until the related NDM Capital Account has been reduced to zero. For the avoidance of doubt, an NDM Unit shall not entitle the holder thereof to any distributions (whether operating, special, liquidating or otherwise) from the Company after the related NDM Capital Account has been reduced to zero. NDM Units shall be non-voting Membership Interests in the Company.
(c) Notwithstanding anything in this Section 4.5 5.15 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP NDM Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP NDM Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii5.15(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP NDM Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b5.15(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and 5.15(b), (C) third, all NDM Units, if any, issued pursuant to Section 5.15(b)(ii) shall be cancelled and (D) fourth, the Percentage Interest and Partnership Interests of each Partner Member shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant as required above, the Delinquent Member shall no longer be deemed to this Section 4.5(c) or (ii) be in default with respect to the unfunded Required Contribution. If the default is remedied by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b)as set forth above, the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner in default with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Harbinger Group Inc.)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute Member does not contribute, within 10 Days of the date required, all or any portion of a Required Capital Contribution that such Partner (a “Delinquent Partner”) Member is required to make as provided in this Agreement, thenthe other Members may cause the Company to exercise, while on notice to that Member (the "Non-Contributing Member"), one or more of the following remedies:
(i) taking such Partner is a Delinquent Partner, each nonaction (including court proceedings) as the other Members may deem appropriate to obtain payment by the Non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any Contributing Member of the portion of the Delinquent Partner’s Required Contribution as a Non-Contributing Member's Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amountthat is in default, such non-Delinquent Partner shall so notify each of together with interest thereon at the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following Default Rate from the date that the participating nonCapital Contribution was due until the date that it is made, all at the cost and expense of the Non-Delinquent Partner(sContributing Member;
(ii) satisfied permitting the Required Contributionother Members in proportion to their Sharing Ratios or in such other percentages as they may agree (the "Lending Member," whether one or more), by making to advance the portion of the Non-Contributing Member's Capital Contribution that is in default, with the following results:
(A) the sum advanced constitutes a loan from the Lending Member to the Non-Contributing Member and a Capital Contribution of that sum to the Partnership in an amount equal Company by the Non-Contributing Member pursuant to the Required Contribution applicable provisions of this Agreement,
(a “Make-Up Contribution”B) the principal balance of the loan and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied all accrued unpaid interest thereon is due and payable in whole on the tenth Day after written demand therefor by the Lending Member to the Non-Contributing Member,
(C) the amount lent bears interest at the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to Day that the advance is deemed made until the date that the Delinquent Partner makes its Makeloan, together with all interest accrued on it, is repaid to the Lending Member,
(D) all distributions from the Company that otherwise would be made to the Non-Up Contribution Contributing Member (whether before or after dissolution of the “Default Interest Amount”Company) instead shall be paid to the Lending Member until the loan and all interest accrued on it have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest and then to principal). If ,
(E) the payment of the loan and interest accrued on it is secured by a Delinquent Partner cures its delinquency pursuant to security interest in the Non-Contributing Member's Membership Interest, as more fully set forth in Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b4.03(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.and
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Louisiana Generating LLC), Limited Liability Company Agreement (Louisiana Generating LLC)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to does not contribute all by the time required the Capital Contribution (or any portion return of a Required Contribution prior distributions) that such Partner (a the “Delinquent Partner”") is required to make as provided in this AgreementSections 4.01, then4.02, while such 4.03 and 4.04, then the General Partner (if not a Delinquent Partner) acting alone, or, if the General Partner is a Delinquent Partner, each nonthe Class A Limited Partners of the applicable Series in respect of which such default occurred other than any Delinquent Partner (“Non-Delinquent Partners"), acting unanimously and jointly as a group, may exercise any of the following remedies:
(a) take such action as the General Partner or Non-Delinquent Partners may deem appropriate to obtain specific performance by the Delinquent Partner of its obligation to make that portion of the Delinquent Partner’s Capital Contribution that is in default, together with interest thereon at the Default Interest Rate from the date that such Capital Contribution was due until the date that it is made, all at the cost and expense of the Delinquent Partner.
(but shall have no obligation tob) elect deliver to fund the Partnership in respect of such Series all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant that is in default, in proportion to this Section 4.5. If a nonthe General Partner’s and/or the Non-Delinquent Partners’ respective Sharing Ratios for the Investment in respect of which such Capital Contribution was to be made or in such other ratio as they may agree, with the following results:
(i) the sum delivered constitutes a loan from the General Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of and/or the other nonNon-Delinquent Partners, who shall have five (5) days thereafter in proportion to elect such Partners’ respective Sharing Ratios for the Investment in respect of which such Capital Contribution was to participate be made or in such funding.other ratio as they may agree, to the Delinquent Partner;
(bii) The portion that each participating nonthe principal balance of the loan and all accrued unpaid interest thereon is due and payable on the 10th Business Day after written demand therefor by the General Partner and/or the Non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal Partners to the product of Delinquent Partner;
(xiii) the delinquent amount unpaid principal balance of such Required Contribution multiplied by (y) a fractionthe loan bears interest at the Default Interest Rate from the date that the advance is made until the date that the loan, together with all interest accrued on it, is repaid to the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent General Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating nonand/or Non-Delinquent Partners, as applicable; provided, and
(iv) all distributions from the Partnership that if any participating nonwould otherwise be made to the Delinquent Partner (whether before or after dissolution of the Partnership) instead shall be paid to the General Partner and/or the Non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocatedPartners, as necessaryapplicable, based on in proportion to their respective Percentage InterestsSharing Ratios for the Investment for which such Capital Contribution was to be made or in such other ratio as they may agree, for credit against the unpaid balance of the loan, until the loan and all interest accrued thereon shall have been paid in full (with payments being applied first to accrued and unpaid interest and then to principal). Upon such funding as a Capital Contribution, together with all other costs and expenses incurred by the Partnership Interest and Percentage Interest of each in enforcing against such Delinquent Partner shall be appropriately adjusted the obligation to reflect all pay such funding amounts (based on total Capital Contributions“Enforcement Expenses”).
(c) Notwithstanding anything in this Section 4.5 set-off as appropriate from any payment hereunder or any amounts otherwise payable to such Delinquent Partner by the Partnership or any of its Affiliates (including, without limitation, distributions of Capital Investment Distributable Proceeds, Profits Interest Distributable Proceeds, other amounts payable to such Delinquent Partner from any other partnership or other entity of which such Delinquent Partner is a partner, member or stockholder and which is an Affiliate of the Partnership, and, to the contraryextent permitted by applicable law, the Delinquent Partner may cure employee compensation) and apply such delinquency (i) by contributing its Required Contribution prior set-off amounts against such Partner’s obligation to the make such Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by any interest thereon accruing at the Default Interest Rate for the period from the date such participating non-pursuant to Section 4.05(b) and any Enforcement Expenses.
(d) For purposes of this Section 4.05, if any Delinquent Partner funded its NDP Amount to is a Feeder Fund, the date General Partner shall treat the Feeder Fund Investor that was responsible for such default as the Delinquent Partner makes its Make-Up Contribution (and shall invoke the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution rights, powers and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner remedies specified herein separately with respect to the unfunded Required Contributionsuch Feeder Fund Investor.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Carlyle Group L.P.), Limited Partnership Agreement (Carlyle Group L.P.)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.54.7 (a “Default Contribution”). If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 4.7 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)as set forth in the definition of Percentage Interest.
(c) Notwithstanding anything in this Section 4.5 4.7 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, Contribution by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii4.7(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b4.7(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b4.7(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner Member shall be appropriately adjusted to reflect as set forth in the Make-Up Contribution (based on total Capital Contributions)definition of Percentage Interest. If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c4.7(c) or (ii) by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b4.7(b), the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner Member with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Contribution and Simplification Agreement (Oasis Midstream Partners LP), Contribution and Simplification Agreement (Oasis Petroleum Inc.)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution or a Disproportionate Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion of the Delinquent PartnerMember’s Required Contribution or Disproportionate Contribution as a Capital Contribution pursuant to this Section 4.54.7 (a “Default Contribution”). If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 4.7 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution or Disproportionate Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)as set forth in the definition of Percentage Interest.
(c) Notwithstanding anything in this Section 4.5 4.7 to the contrary, the Delinquent Partner Member may cure such delinquency (id) by contributing its Required Contribution or Disproportionate Contribution prior to the Capital Contribution being made by another Partner Member or (iie) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution or Disproportionate Contribution, by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution or Disproportionate Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii4.7(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b4.7(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b4.7(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner Member shall be appropriately adjusted to reflect as set forth in the Make-Up Contribution (based on total Capital Contributions)definition of Percentage Interest. If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Disproportionate Contribution or Make-Up Contribution pursuant to this Section 4.5(c4.7(c) or (ii) by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b4.7(b), the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner Member with respect to the unfunded Required Contribution or Disproportionate Contribution.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Oasis Midstream Partners LP), Limited Liability Company Agreement (Oasis Midstream Partners LP)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute Member does not contribute, within thirty (30) days of the date required by Section 11.1 or as otherwise agreed by both Members from time IJ time, all or any portion of a Required Capital Contribution that such Partner (a “Delinquent Partner”) Member is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each nonthe other Member (“Non-Delinquent Partner Member”) may cause the Company to exercise, on notice to the first Member (but shall have no obligation to“Delinquent Member’), one or more of the following remedies:
(i) elect taking such action (including court proceedings) as the Non-Delinquent Member may deem appropriate to fund all or any obtain payment by the Delinquent Member of the portion of the Delinquent PartnerMember’s Required Capital Contribution as that is in default, together with interest thereon at the annual prime rate of interest of the Chase Manhattan Bank in effect from time to time plus two percent (2 %) per annum (“ Default Rate’) from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Delinquent Member;
(ii) permitting the Non-Delinquent Member to advance the portion of the Delinquent Member’s Capital Contribution that is in default, with the following results:
(A) the sum advanced constitutes a loan from the Non-Delinquent Member to the Delinquent Member and a Capital Contribution of that sum to the Company by the Delinquent Member pursuant to the applicable provisions of this Agreement,
(B) the principal balance of the loan and all accrued unpaid interest on such loan is due and payable in whole on the ninetieth (90th) day after service of a written demand for such loan by the Non-Delinquent Member to the Delinquent Member,
(C) the amount lent bears interest at the Default Rate from the day that the advance is deemed made until the date that the loan together with all interest accrued on it is repaid to the Non-Delinquent Member,
(D) all distributions from the Company that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company) instead shall be paid to the Non-Delinquent Member until the loan and all interest accrued on it have been paid in full to the Non-Delinquent Member (with payments being applied first to accrued and unpaid interest and then to principal),
(E) the payment of the loan and interest accrued on it is secured by a security interest in the Delinquent Member’s Membership Rights, as more fully set forth in Section 4.511.3 (b), and
(F) the Non-Delinquent Member has the right, in addition to the other rights and remedies granted to it pursuant hereunder or available to it at law or in equity, to take any action (including court proceedings) that the Non-Delinquent Member may deem appropriate to obtain payment by the Delinquent Member of the loan and all accrued and unpaid interest on it, at the cost and expense of the Delinquent Member;
(iii) the Non-Delinquent Member, at its option and with the permission of the Delinquent Member, in lieu of making the loan described in Section 11.3(a)((ii) above, may contribute to the Company the unpaid portion of the Delinquent Member’s Capital Contribution. If such a noncontribution is made, the Membership Interests shall be adjusted in proportion to the Capital Contribution and the Distributions, allocations of Net Profits and Losses and all other allocations under this Agreement shall be correspondingly adjusted to reflect the increased Member’s Interest of the Non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each Member and the decreased Member’s Interest of the Delinquent Member; provided, however, that the voting rights and approval rights of the Delinquent Member under Sections 5 and 7 shall not be affected.
(iv) exercising the rights of a secured party under the Uniform Commercial Code of the State of Delaware, as more fully set forth in Section 11.3 (b); or
(v) exercising any other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate rights and remedies available at law or in such fundingequity.
(b) The portion that each participating nonBoth Members grant to the Company, and the Delinquent Member grants to the Non-Delinquent Partner may fund Member (with respect to any loans made by the Non-Delinquent Member to that Member as a Delinquent Member pursuant to Section 11.3(a), as security, equally and ratably, for the payment of all Capital Contributions that Member has agreed to make and the payment of all loans and interest accrued on such loans made by Non-Delinquent Members to that Member as a Delinquent Member pursuant to Section 11.3(a). a security interest in and a general lien on its Membership Interests and the proceeds thereof. all under the Uniform Commercial Code of the State of Delaware. On any default in the payment of a Capital Contribution pursuant to this Section 4.5 (or in the “NDP Amount”) shall be equal to the product of (x) the delinquent amount payment of such Required Contribution multiplied by (y) a fraction, loan or interest accrued on it. the numerator of which shall be Company or the Percentage Interest then held by such participating nonNon-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; providedMember as applicable, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be is entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as all the rights and remedies of a Capital Contribution, secured party under the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests Uniform Commercial Code of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application State of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner Delaware with respect to the unfunded Required Contributionsecurity interest granted in this Section 11.3(b). Each Member shall execute and deliver to the Company and the other Members all financing statements and other instruments that the Board of Managers or the Non-Delinquent Member, as applicable, may request to effectuate and carry out the preceding provisions of this Section 11.3(b). At the option of the Non-Delinquent Member, this Agreement or a carbon, photographic, or other copy hereof may serve as a financing statement.
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement (Global Crossing Servicios, S. De R.L. De C.V.)
FAILURE TO CONTRIBUTE. (a) If a Limited Partner fails to contribute all or any portion of a Required Contribution that such Limited Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Limited Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund or arrange for a Permitted Transferee to fund (or, if all other non-Delinquent Partners waive their rights under this Section 5.10, to arrange for any other Person who agrees to become a Limited Partner to fund) all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.55.10. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 5.10 (the “NDP NDM Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Partner shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, at the Partnership election of the participating non-Delinquent Partners holding a majority of the aggregate Percentage Interests of all participating non-Delinquent Partners, either:
(i) the Limited Partner Interest, Percentage Interest and Percentage Interest Units of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions); provided, however, that if (A) such funding is in connection with a Unilateral Capital Contribution Event or a Capital Contribution Event in which at least one director designated by EXCO and one director designated by Harbinger voted in favor thereof and (B) the Harbinger Member (as defined in the GP LLC Agreement) has not exercised the Full Special Committee Control Rights (as defined in the GP LLC Agreement), then in addition to the dilutive effect caused by one or more Limited Partners funding the Delinquent Partner’s portion of such Required Contribution as set forth in this Section 5.10, (1) the Percentage Interest and Units of such Delinquent Partner shall also be decreased by the Dilution Percentage, and (2) the aggregate Percentage Interest and Units of the participating non-Delinquent Partner(s) who funded such Required Contribution on behalf of such Delinquent Partner shall be increased by the same amount on the same pro rata basis as such participating non-Delinquent Partner(s) funded such Required Contribution; or
(ii) the Partnership shall issue to each participating non-Delinquent Partner newly created, non-voting preferred Additional Interests (the “NDM Interests”). The NDM Interests received by each funding non-Delinquent Partner shall (A) have an aggregate capital account (an “NDM Capital Account”) equal to such non-Delinquent Partner’s NDM Amount and (B) be entitled to receive distributions prior to all other Equity Interests in the Partnership until the related NDM Capital Account has been reduced to zero. For the avoidance of doubt, an NDM Interest shall not entitle the holder thereof to any distributions (whether operating, special, liquidating or otherwise) from the Partnership after the related NDM Capital Account has been reduced to zero. NDM Interests shall be non-voting Equity Interests in the Partnership.
(c) Notwithstanding anything in this Section 4.5 5.10 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP NDM Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP NDM Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii5.10(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner Member that is a participating non-Delinquent Partner the NDP NDM Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b5.10(b), (B) second, the respective Capital Accounts and Accounts, Percentage Interests and Units of the Partners Partners, and any issuances or Transfers of Units of the Partners, shall be adjusted with all necessary increases or decreases (in the case of any issuances or Transfers of Units, at the initial price of issuance of such Units) to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and 5.10(b), (C) third, all NDM Interests, if any, issued pursuant to Section 5.10(b)(ii) shall be cancelled and (D) fourth, the Percentage Interest and Partnership Interests Units of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant as required above, the Delinquent Partner shall no longer be deemed to this Section 4.5(c) or (ii) be in default with respect to the unfunded Required Contribution. If the default is remedied by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b)as set forth above, the Delinquent Partner shall no longer be deemed to be a Delinquent Partner in default with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Harbinger Group Inc.), Limited Partnership Agreement (Exco Resources Inc)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund or arrange for a 100% Affiliate to fund (or, if all other non-Delinquent Members waive their rights under this Section 5.15, to arrange for any other Person who agrees to become a Member to fund) all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.55.15. If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 5.15 (the “NDP NDM Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, at the Partnership Interest and election of the participating non-Delinquent Members holding a majority of the aggregate Percentage Interests of all participating non-Delinquent Members, either:
(i) the Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions); provided, however, that if (A) such funding is in connection with a Unilateral Capital Contribution Event or a Capital Contribution Event in which at least one EXCO Director and one Harbinger Director voted in favor thereof and (B) the Harbinger Member has not exercised the Full Special Committee Control Rights, then in addition to the dilutive effect caused by one or more Members funding the Delinquent Member’s portion of such Required Contribution as set forth in this Section 5.15, (1) the Percentage Interest of such Delinquent Member shall also be decreased by the Dilution Percentage, and (2) the aggregate Percentage Interest of the participating non-Delinquent Member(s) who funded such Required Contribution on behalf of such Delinquent Member shall be increased by the same amount on the same pro rata basis as such participating non-Delinquent Member(s) funded such Required Contribution; or
(ii) the Company shall issue to each participating non-Delinquent Member newly created, non-voting preferred Additional Units (the “NDM Units”). The NDM Units received by each funding non-Delinquent Member shall (A) have an aggregate capital account (an “NDM Capital Account”) equal to such non-Delinquent Member’s NDM Amount and (B) be entitled to receive distributions prior to all other Membership Interests in the Company until the related NDM Capital Account has been reduced to zero. For the avoidance of doubt, an NDM Unit shall not entitle the holder thereof to any distributions (whether operating, special, liquidating or otherwise) from the Company after the related NDM Capital Account has been reduced to zero. NDM Units shall be non-voting Membership Interests in the Company.
(c) Notwithstanding anything in this Section 4.5 5.15 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP NDM Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP NDM Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii5.15(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP NDM Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b5.15(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and 5.15(b), (C) third, all NDM Units, if any, issued pursuant to Section 5.15(b)(ii) shall be cancelled and (D) fourth, the Percentage Interest and Partnership Interests of each Partner Member shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant as required above, the Delinquent Member shall no longer be deemed to this Section 4.5(c) or (ii) be in default with respect to the unfunded Required Contribution. If the default is remedied by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b)as set forth above, the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner in default with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Harbinger Group Inc.)
FAILURE TO CONTRIBUTE. (a) If a Partner Member fails to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion of the Delinquent PartnerMember’s Required Contribution as a Capital Contribution pursuant to this Section 4.54.7 (a “Default Contribution”). If a non-Delinquent Partner Member so desires to fund such amount, such non-Delinquent Partner Member shall so notify each of the other non-Delinquent PartnersMembers, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner Member may fund as a Capital Contribution pursuant to this Section 4.5 4.7 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-non- Delinquent Partner Member and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent PartnersMembers; provided, that if any participating non-Delinquent Partner Member elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners Members shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner Member shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)as set forth in the definition of Percentage Interest.
(c) Notwithstanding anything in this Section 4.5 4.7 to the contrary, the Delinquent Partner Member may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner Member or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(sMember(s) satisfied the Required Contribution, Contribution by making a Capital Contribution to the Partnership Company in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner Member an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner Member funded its NDP Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner Member cures its delinquency pursuant to Section 4.5(c)(ii4.7(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership Company shall distribute to each existing Partner Member that is a participating non-Delinquent Partner Member the NDP Amount that such participating non-Delinquent Partner Member funded pursuant to Section 4.5(b4.7(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners Members shall be adjusted with all necessary increases or decreases to return the PartnersMembers’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b4.7(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner Member shall be appropriately adjusted to reflect as set forth in the Make-Up Contribution (based on total Capital Contributions)definition of Percentage Interest. If the delinquency is remedied (i) by the Delinquent Partner Member making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c4.7(c) or (ii) by funding by the non-Delinquent Partner(sMember(s) as a Capital Contribution pursuant to Section 4.5(b4.7(b), the Delinquent Partner Member shall no longer be deemed to be a Delinquent Partner Member with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Oasis Midstream Partners LP), Limited Liability Company Agreement (Oasis Midstream Partners LP)
FAILURE TO CONTRIBUTE. (a) If any Member or Economic Interest Owner (a Partner "Non-Contributing Person") fails to contribute all or any its portion of a Required the amount of the additional Capital Contribution that such Partner called by the Members in accordance with Section 6.2 above, then the following shall occur: (a “Delinquent Partner”i) is required the Company shall have the right to make obtain the additional Capital Contribution not made by the Non-Contributing Person from the other Members and Economic Interest Owners; (ii) the Non- Contributing Person shall relinquish all of its Voting Rights, if any, unless and until it has made its Cure Contribution (as provided defined below) in full; and (iii) the Company and the other Members and Economic Interest Owners shall have all other rights set forth in this AgreementSection 6.3. Thereupon, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but the other Members and Economic Interest Owners shall have no obligation to) elect the right, but not the obligation, to fund contribute on a pro rata basis determined with reference to the relationship of each respective other Member's or Economic Interest Owner's Percentage Interest to the total Percentage Interests of all or of such other Members and Economic Interest Owners, unless a different allocation is agreed upon among them, any portion of the Delinquent Partner’s Required Contribution as a additional Capital Contribution not contributed by the Non-Contributing Person, and each such Member or Economic Interest Owner shall deliver to the Company such amount not later than ten (10) days following the expiration of the thirty (30) day period referenced above. All such Capital Contributions made by Members and Economic Interest Owners pursuant to this Section 4.5. If a non-Delinquent Partner so desires 6.3, shall be credited to fund such amount, such non-Delinquent Partner shall so notify each the Capital Account of the other nonMember or Economic Interest Owner making the Capital Contribution. A Member or Economic Interest Holder who was not a Non-Delinquent Partners, who Contributing Person with respect to any such capital call shall have five not be deemed a Non- Contributing Person (5and shall not relinquish any Voting Rights) days thereafter to elect by reason of such Member or Economic Interest Owner choosing not to participate in additional contributions to make up for the share not contributed by the Non-Contributing Person; provided, however, that if the Members or Economic Interest Owners which elect to contribute the funds not contributed by the Non-Contributing Person do not contribute the entire amount of such fundingfunds not contributed by the Non-Contributing Person, then the Members may initiate a new capital call on all of the Members and Economic Interest Owners pursuant to the terms of Section 6.2 above for the additional capital required by the Company, and any Member or Economic Interest Owner who fails to fund its share of that new capital call (in accordance with its Percentage Interest) shall be deemed a Non-Contributing Person with respect to such new capital call for purposes hereof.
(b) The portion that each participating nonFor purposes hereof, in the event of a capital call in which there is at least one Non- Contributing Person, all of the Capital Contributions made by Members or Economic Interest Owners pursuant to such capital call (including their initial shares of the capital call and any additional capital contributed by reason of the failure of a Non-Delinquent Partner may fund as Contributing Person to make a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”Contribution) shall be deemed "Preference Contributions." A "Preference Contribution Account," which shall be a memorandum account, shall be maintained for each Member and Economic Interest Owner. Each Member's and Economic Interest Owner's Preference Contribution Account shall have an initial balance of zero and be increased by (i) an amount equal to one hundred twenty-five percent (125%) of each Preference Contribution made by such Member or Economic Interest Owner (as of the product of (x) the delinquent amount time of such Required Preference Contribution) and (ii) an amount equal to a return on the balance of such Preference Contribution multiplied by Account balance, from time to time, at the rate of fifteen percent (y15%) a fraction, per annum (the numerator daily portion of which shall be deemed added to the Percentage Preference Contribution Account on a daily basis); and decreased (but not below zero) by each distribution made to such Member or Economic Interest then held by such participating non-Delinquent Partner and Owner pursuant to Sections 6.3(c), 8.1 or 12.7(d) hereof (in each case, as of the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation time of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributionsdistribution).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Great Plains Energy Inc), Limited Liability Company Agreement (Great Plains Energy Inc)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute all or any portion of a Required Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion amount that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the delinquent amount of such Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then subject to the Act and other applicable law, (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Howard Midstream Partners, LP), Limited Partnership Agreement (Howard Midstream Partners, LP)
FAILURE TO CONTRIBUTE. (a) If a Partner fails Member is in Default as a result of its failure to contribute all or any portion of a Required Contribution that such Partner Member (a “Delinquent PartnerMember”) is required to make as provided in this Agreement, then, while such Partner Member is a Delinquent PartnerMember, each the non-Delinquent Partner Member may (but shall have no obligation to) elect to fund all or any portion advance the entire amount of the Delinquent PartnerMember’s Required Contribution that is in Default, in which case the Membership Interests and Percentage Interest of each Member shall be adjusted to equal the amount (expressed as a percentage) determined by dividing the total Capital Contribution Contributions made by such Member by the total Capital Contributions made by both Members; provided, however, that the Delinquent Member may cure such delinquency by contributing its Percentage Interest share (prior to any adjustment pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund 7.2(a)) of such amountRequired Contribution, such non-Delinquent Partner shall so notify each of plus interest at the other non-Delinquent PartnersDefault Interest Rate, who shall have five within fifteen (515) days thereafter after the date on which such Required Contribution was initially due, and such Delinquent Member’s Membership Interest and Percentage Interest shall be restored as if an adjustment pursuant to elect to participate in such fundingthis Section 7.2(a) had never been made.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant If either Member fails to this Section 4.5 (the “NDP Amount”) shall be equal make any Required Contribution, then, in addition to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything rights granted elsewhere in this Section 4.5 to the contrary7.2, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) Company and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant Member shall each have the right to Section 4.5(b), exercise the Delinquent Partner shall no longer be deemed to be a Delinquent Partner following remedies with respect to the unfunded Delinquent Member:
(i) the Company or the non-Delinquent Member may at any time take such action (including instigating court Actions) as the Company or the non-Delinquent Member may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member’s Required ContributionContribution that is in Default, along with all costs and expenses associated with the collection thereof; and
(ii) the Company or the non-Delinquent Member may at any time exercise any other rights and remedies available under this Agreement or at law or in equity.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Regency Energy Partners LP)
FAILURE TO CONTRIBUTE. (a) If a Limited Partner fails to contribute all or any portion of a Required Contribution that such Limited Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Limited Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund or arrange for a Permitted Transferee to fund (or, if all other non-Delinquent Partners waive their rights under this Section 5.10, to arrange for any other Person who agrees to become a Limited Partner to fund) all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.55.10. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 5.10 (the “NDP NDM Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, at the Partnership election of the participating non-Delinquent Partners holding a majority of the aggregate Percentage Interests of all participating non-Delinquent Partners, either:
(i) the Limited Partner Interest, Percentage Interest and Percentage Interest Units of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions); provided, however, that if (A) such funding is in connection with a Unilateral Capital Contribution Event or a Capital Contribution Event in which at least one director designated by EXCO and one director designated by Harbinger voted in favor thereof and (B) the Harbinger Member (as defined in the GP LLC Agreement) has not exercised the Full Special Committee Control Rights (as defined in the GP LLC Agreement), then in addition to the dilutive effect caused by one or more Limited Partners funding the Delinquent Partner’s portion of such Required Contribution as set forth in this Section 5.10, (1) the Percentage Interest and Units of such Delinquent Partner shall also be decreased by the Dilution Percentage, and (2) the aggregate Percentage Interest and Units of the participating non-Delinquent Partner(s) who funded such Required Contribution on behalf of such Delinquent Partner shall be increased by the same amount on the same pro rata basis as such participating non-Delinquent Partner(s) funded such Required Contribution; or
(ii) the Partnership shall issue to each participating non-Delinquent Partner newly created, non-voting preferred Additional Interests (the “NDM Interests”). The NDM Interests received by each funding non-Delinquent Partner shall (A) have an aggregate capital account (an “NDM Capital Account”) equal to such non-Delinquent Partner’s NDM Amount and (B) be entitled to receive distributions prior to all other Equity Interests in the Partnership until the related NDM Capital Account has been reduced to zero. For the avoidance of doubt, an NDM Interest shall not entitle the holder thereof to any distributions (whether operating, special, liquidating or otherwise) from the Partnership after the related NDM Capital Account has been reduced to zero. NDM Interests shall be non-voting Equity Interests in the Partnership.
(c) Notwithstanding anything in this Section 4.5 5.10 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP NDM Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP NDM Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii5.10(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP NDM Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b5.10(b), (B) second, the respective Capital Accounts and Accounts, Percentage Interests and Units of the Partners Partners, and any issuances or Transfers of Units of the Partners, shall be adjusted with all necessary increases or decreases (in the case of any issuances or Transfers of Units, at the initial price of issuance of such Units) to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and 5.10(b), (C) third, all NDM Interests, if any, issued pursuant to Section 5.10(b)(ii) shall be cancelled and (D) fourth, the Percentage Interest and Partnership Interests Units of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant as required above, the Delinquent Partner shall no longer be deemed to this Section 4.5(c) or (ii) be in default with respect to the unfunded Required Contribution. If the default is remedied by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b)as set forth above, the Delinquent Partner shall no longer be deemed to be a Delinquent Partner in default with respect to the unfunded Required Contribution.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Harbinger Group Inc.)
FAILURE TO CONTRIBUTE. (a) If a Limited Partner fails to contribute all or any portion of a Required Contribution that such Limited Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Limited Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund or arrange for a Permitted Transferee to fund (or, if all other non-Delinquent Partners waive their rights under this Section 5.10, to arrange for any other Person who agrees to become a Limited Partner to fund) all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.55.10. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(ba) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 5.10 (the “NDP NDM Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, at the Partnership election of the participating non-Delinquent Partners holding a majority of the aggregate Percentage Interests of all participating non-Delinquent Partners, either:
(i) the Limited Partner Interest, Percentage Interest and Percentage Interest Units of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions); provided, however, that if (A) such funding is in connection with a Unilateral Capital Contribution Event or a Capital Contribution Event in which at least one director designated by EXCO and one director designated by Harbinger voted in favor thereof and (B) the Harbinger Member (as defined in the GP LLC Agreement) has not exercised the Full Special Committee Control Rights (as defined in the GP LLC Agreement), then in addition to the dilutive effect caused by one or more Limited Partners funding the Delinquent Partner’s portion of such Required Contribution as set forth in this Section 5.10, (1) the Percentage Interest and Units of such Delinquent Partner shall also be decreased by the Dilution Percentage, and (2) the aggregate Percentage Interest and Units of the participating non-Delinquent Partner(s) who funded such Required Contribution on behalf of such Delinquent Partner shall be increased by the same amount on the same pro rata basis as such participating non-Delinquent Partner(s) funded such Required Contribution; or
(ii) the Partnership shall issue to each participating non-Delinquent Partner newly created, non-voting preferred Additional Interests (the “NDM Interests”). The NDM Interests received by each funding non-Delinquent Partner shall (A) have an aggregate capital account (an “NDM Capital Account”) equal to such non-Delinquent Partner’s NDM Amount and (B) be entitled to receive distributions prior to all other Equity Interests in the Partnership until the related NDM Capital Account has been reduced to zero. For the avoidance of doubt, an NDM Interest shall not entitle the holder thereof to any distributions (whether operating, special, liquidating or otherwise) from the Partnership after the related NDM Capital Account has been reduced to zero. NDM Interests shall be non-voting Equity Interests in the Partnership.
(cb) Notwithstanding anything in this Section 4.5 5.10 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP NDM Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP NDM Amount to the date that the Delinquent Partner Member makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii5.10(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP NDM Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b5.10(b), (B) second, the respective Capital Accounts and Accounts, Percentage Interests and Units of the Partners Partners, and any issuances or Transfers of Units of the Partners, shall be adjusted with all necessary increases or decreases (in the case of any issuances or Transfers of Units, at the initial price of issuance of such Units) to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and 5.10(b), (C) third, all NDM Interests, if any, issued pursuant to Section 5.10(b)(ii) shall be cancelled and (D) fourth, the Percentage Interest and Partnership Interests Units of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant as required above, the Delinquent Partner shall no longer be deemed to this Section 4.5(c) or (ii) be in default with respect to the unfunded Required Contribution. If the default is remedied by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b)as set forth above, the Delinquent Partner shall no longer be deemed to be a Delinquent Partner in default with respect to the unfunded Required Contribution.
Appears in 1 contract
FAILURE TO CONTRIBUTE. (a) If a Partner fails to Party does not contribute by the required time all or any portion of a Required Capital Contribution that such Partner Party (a the “Delinquent PartnerParty”) is required to make as provided in this Agreementunder Section 4.1 or to which such Party agreed, then, while such Partner is a Delinquent Partner, each nonany one or more Non-Delinquent Partner may advance the entire amount of the Delinquent Party’s Capital Contribution that has not been contributed, with each Non-Delinquent Partner electing to participate in such advance making its share of such advance in proportion to its Partnership Interest (but shall without taking into account the Partnership Interest of the Delinquent Party) or in such other percentages as the participating Partners may agree. Each Non-Delinquent Partner who makes such an advance on behalf of a Delinquent Party will have no obligation tothe right to designate the extent to which such advance will (x) elect constitute a loan to fund all the Delinquent Party and/or (y) result in an immediate adjustment of the Partnership Interests of the Delinquent Party and the Non-Delinquent Partner making such election; provided, however, that if the advancing Non-Delinquent Partner does not notify the Company of its election to have all, or any portion of, such advance treated as a loan to the Delinquent Party, in writing, at the time the advance is made, then such advance will automatically result in an immediate adjustment of the Partnership Interests.
(i) To the extent one or more Non-Delinquent Partners does not elect to have an advance made pursuant to Section 4.3(a) treated as a loan to the Delinquent Party, or affirmatively elects to have such advance result in an adjustment of the Partnership Interests, the Company will automatically adjust the Partnership Interest for each Partner to equal the percentage obtained by dividing (A) the Capital Contributions made by such Partner (including any Capital Contribution made by such Partner under this Section 4.3 multiplied by two and twenty-five hundredths (2.25); provided that the Delinquent Party shall forfeit from its Capital Contributions an amount equal to the amount of the Delinquent Party’s Capital Contribution that has not been contributed and that has not been designated as a loan multiplied by one and twenty-five hundredths (1.25)) by (B) the aggregate Capital Contributions made by all Partners (including all Capital Contributions made under this Section). Upon the adjustment of the Partnership Interests in the manner set forth in the preceding sentence, Exhibit A will be deemed to be amended to reflect such adjusted Partnership Interests. Notwithstanding the foregoing, the Delinquent Party will have the right to re-acquire the interest in question from the advancing Non-Delinquent Partner within 30 Days following the date on which such Partnership Interest adjustment is made by paying the entire amount advanced by such Non-Delinquent Partner in return for such adjustment, plus interest thereon at a rate equal to the lesser of (A) the maximum, lawful interest rate, compounded monthly, that is then-currently permitted under applicable Law, or (B) 12% per annum.
(ii) To the extent one or more Non-Delinquent Partners (the “Lending Partner,” whether one or more) elects to have an advance made pursuant to Section 4.3(a) constitute a loan to the Delinquent Party, such advance will have the following results (except to the extent otherwise agreed by the Lending Partner and the Delinquent Party, in each such Person’s sole discretion):
(A) the sum advanced will constitute a loan from the Lending Partner to the Delinquent Party and a Capital Contribution of that sum to the Company by the Delinquent Party pursuant to the applicable provisions of this Agreement;
(B) the principal balance of the loan and all accrued unpaid interest thereon (collectively, the “Obligation”) will be due and payable in whole no later than the tenth Business Day after the Day written demand requesting payment of the Obligation is made by the Lending Partner to the Delinquent Party; provided, however, that the Delinquent Party may prepay the Obligation in whole or in part at any time prior to the date due;
(C) the amount lent will bear interest at the Default Interest Rate from the date on which the advance is deemed made until the date on which the loan, together with all interest accrued thereon and all costs and expenses associated therewith (“Costs”), is repaid to the Lending Partner;
(D) all distributions from the Company that otherwise would be made to the Delinquent Party (whether before or after dissolution of the Company) instead will be paid to the Lending Partner until the Obligation and any Costs have been paid in full to the Lending Partner (with payments being applied first to accrued and unpaid interest, second to Costs, and finally to principal);
(E) the Lending Partner will have the right, in addition to the other rights and remedies granted to it pursuant to this Agreement or available to it at Law or in equity, to take any action (including court proceedings and exercising the rights of a secured party under the Uniform Commercial Code of any applicable State) that the Lending Partner may deem appropriate to obtain payment from the Delinquent Party of the Obligation and all Costs; and
(F) initially, a loan by any Partner to another Partner as contemplated by this Section 4.3(a)(ii) will not be considered a Capital Contribution by the Lending Partner and will not increase the Capital Account balance of the Lending Partner. Notwithstanding the foregoing, if the principal and interest of any such loan have not been repaid within one year from the date of the loan, the Lending Partner, at any time thereafter by giving written notice to the Company, may elect to have the unpaid principal and interest balance of such loan transferred to and increase such Lending Partner’s Required Contribution Capital Account with a corresponding decrease in the Capital Account of the Partner on whose behalf such loan was made. Upon such transfer, the loan will be treated as a Capital Contribution pursuant and the Partnership Interest for each Partner will be automatically adjusted to this Section 4.5. If a non-equal the percentage obtained by dividing (A) the Capital Account of such Partner (including any Capital Contributions made on behalf of another Partner multiplied by two; provided that the Delinquent Partner so desires Party shall forfeit from its Capital Contributions an amount equal to fund such amount, such non-Delinquent Partner shall so notify each the amount of the Delinquent Party’s Capital Contribution that has not been contributed and has not been designated as a loan) by (B) the aggregate Capital Accounts of all Partners (including all Capital Contributions made on behalf of other non-Delinquent Partners). Upon the adjustment of the Partnership Interests in the manner set forth in the preceding sentence, who shall have five (5) days thereafter Exhibit A will be deemed to elect be amended to participate in reflect such fundingadjusted Partnership Interests.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (Notwithstanding the “NDP Amount”) shall be equal to the product rights of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating nonNon-Delinquent Partners shall be entitled described in Section 4.3(a), the Company, by a vote of a Majority Interest (where the Party in Default is not an Eligible Partner), will have the right to exercise the following remedies with respect to a Party in Default:
(i) the Company may at any time take up such shortfall action (allocatedincluding court proceedings) as the Company may deem appropriate to obtain payment by the Delinquent Party of the portion of the Delinquent Party’s Capital Contribution that is in Default, as necessary, based on their respective Percentage Interests). Upon along with all Costs and expenses associated with the collection of such funding as a Delinquent Party’s Capital Contribution, ; and
(ii) the Partnership Interest Company may at any time exercise any other rights and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)remedies available at law or in equity.
(c) Notwithstanding anything in this For purposes of Section 4.5 to 4.3(b) above the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests rights of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Lending Partner shall be appropriately adjusted to reflect pari passu as among the Make-Up Contribution (based on total Capital Contributions). If Company and the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required ContributionEligible Partners.
Appears in 1 contract
FAILURE TO CONTRIBUTE. (a) If a In the event that any Partner fails shall fail to contribute make all or any portion of a Required Contribution such Partner's required capital contribution to the capital of this Partnership as set forth in this Agreement within seven (7) days after written notice by any General Partner that such Partner (a “Delinquent Partner”) capital contribution is required to make as provided in this Agreementdue, then, while then such Partner is a Delinquent shall be "in default" of this Agreement ("Defaulting Partner"). In the event of such default, each non-Delinquent Partner may the other Partners shall have the right (but shall have no obligation tonot the obligation) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund convert the capital contribution which it made to a loan and to advance as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution loan to the Partnership in an the amount equal to the Required Contribution capital contribution that such Defaulting Partner failed to make (a “Make-Up Contribution”) and paying collectively "Default Loan"). The Partners electing to each participating non-Delinquent Partner an amount equal make such Default Loan hereunder are hereinafter referred to its respective NDP Amount multiplied by as "Lending Partners." The Lending Partners shall determine amongst themselves the proportion in which the Default Interest Loan shall be made, or, if they fail to agree, then pro rata based on their relative percentage Interests in the Partnership. In the event the Lending Partners have advanced such monies as a Default Loan to the Partnership, then and in such event, the following shall be applicable, (i) such Default Loan shall be a demand loan which shall bear interest at eighteen percent (18%) per annum ("Default Rate"); (ii) all monies paid as repayment of such Default Loan shall first be applied to the costs and expenses of the Lending Partners, including attorneys' fees and costs with respect to such Default Loan which shall bear interest at the Default Rate for from and after the period from date any such expenses are incurred to and through the date such participating non-Delinquent Partner funded its NDP Amount to monies are repaid, secondly toward accrued and unpaid interest and finally, toward the date that the Delinquent Partner makes its Make-Up Contribution outstanding principal balance; (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(iiiii) by making a Make-Up Contribution and paying interest on the Default Interest Amount, then (A) first, the Partnership Loan shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that be due and payable monthly and all such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests interest shall be deemed an expense of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) thirdPartnership, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.which monthly
Appears in 1 contract
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute does not contribut~~ by the time required all or any portion of a Required Capital Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, thenthe Partnership may exercise, while such on notice to that Partner is a (the "Delinquent Partner"), each non-one or more of the following remedies: (i) taking such action (including, without limitation, court proceedings) as the Managing General Partner may deem appropriate to obtain paym~ nt by the Delinquent Partner may of the portion of the I)elinquent Partner's Capital Contribution that is in default, together with interest on that amount at the Default Interest Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Delinquent Partner; (but shall have no obligation toii) permitting the Managing General Partner and, to thE extent the Managing General Partner does not elect to fund all do so, the other Partners in proportion to their Sharing Ratios or any in such other percentages as they may agree (the "Lending Partner," or "Lending Partners", if more than one), to advance the portion of the Delinquent Partner’s Required 's Capital Contribution as that is in default, with the following results: (A) the sum advanced constitutes the principa. of a loan from the Lending Partner to the Delinquent Partner and a Capital Contribution pursuant of that -13.. PTF-1 77R2S-OflO~2Q � sum to this Section 4.5. If a non-the Partnership by the Delinquent Partner so desires under the applicable provisions of this Agreement, (B) the principal balance of the loan and all accrued unpaid interest is due and payable on the tenth day after written demand by the Lending Partner to fund such amountthe Delinquent Partner, such non-(C) the principal balance of the loan bears interest at the Default Interest Rate from the day that the advance is deemed made until the date that the loan, together with all interest accrued on it, is repaid to the Lending Partner, (D) all distributions from the Partnership that otherwise would be made to the Delinquent Partner shall so notify each (whether before or aft3r dissolution of the Partnership) instead shall be paid to the Lending Partner u ~til the loan, together with all interest accrued on it, have been paid in full to the Lending Partner (with payments being applied first to accrued and unpaid interest and then to principal), (E) the payment of the loan and interest accrued on it is secured by a security interest in the Delinquent Partner's Partnership Interest, as more fully set forth in Section 4.03(b), and (F) the Lending Partner has the right, in addition to the other nonrights and remedies granted to it under this Agreement or at la~ or in equity, to take any action (including, without limitation, court proceedings) that the Lending Partner may deem appropriate to obtain payment by the Delinquent Partner of the loan and all accrued and unpaid interest on it, at the cost and expense of the Delinquent Partner; (iii) exercising the rights of a secured party under the lJniforrn Commercial Code of the State of Texas, as more fully set forth in Section 4.03(b); or -14- ETF- I 737B2 5-Delinquent Partners, who shall have five 000330 � (5iv) days thereafter to elect to participate exercising any other rights and remedies available it law or in such fundingequity.
(b) The portion that each participating non-Delinquent Each Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal grants to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fractionPartnership, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Lending Partner with respect to any loans made by the unfunded Required Contribution.Lending Partner to that Partner as a Delinquent Partner as described in Section 4.03(a)(ii), as security, equally and ratably, for the p.iyment of all Capital Contributions that Partner has agreed to make and the payment of a I loans and interest accrued on them made by Lending Partners to that Partner as a Delinquent Partner as described in Section 4.03(a)(ii), a security interest in and a general lien on its Partnership Interest and the proceeds of that Partnership Interest, all under the Unifo -m Commercial Code of the State of Texas. On any default in the payment of a Capital Contribution or in the payment of such a loan or interest accrued on it, the Partnership or the Lending Partner, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Texas with respect to the security interest granted in this Sec- tion 4.03
Appears in 1 contract
Sources: Limited Partnership Agreement
FAILURE TO CONTRIBUTE. (a) If a Limited Partner fails to contribute does not contribute, within 10 Business Days of the date required, all or any portion of a Required Capital Contribution that such Limited Partner (a “Delinquent Partner”) is required to make as provided in this AgreementSection 4.5(a) or 4.5(b), then, while such Partner is a Delinquent Partner, each non-Delinquent the General Partner may cause the Partnership to exercise, on notice to such Limited Partner (but shall have no obligation tothe “Non-Contributing Limited Partner”), one or more of the following remedies:
(i) elect taking such action (including court proceedings) as the General Partner may deem appropriate to fund all or any obtain payment by the Non-Contributing Limited Partner of the portion of the Delinquent Non-Contributing Limited Partner’s Required Contribution as a Capital Contribution that has not been paid, together with interest thereon at the Default Rate from the date that the Capital Contribution was due until the date that it is made, all at the cost and expense of the Non-Contributing Limited Partner;
(ii) permitting the other Class A Common Limited Partners and Class B Common Limited Partners, in proportion to their respective Commitments or in such other percentages as they may agree (whether one or more, the “Contributing Limited Partner”) to contribute the portion of the Non-Contributing Limited Partner’s Capital Contribution that has not been paid, with the following results:
(A) the Capital Account of the Non-Contributing Limited Partner shall be reduced by an amount equal to one hundred percent (100%) of the Capital Contribution that such Non-Contributing Limited Partner has failed to make (the “Capital Account Reduction”);
(B) the Capital Account of the Contributing Limited Partner shall be increased by an amount equal to the absolute value of the Capital Account Reduction;
(C) the Sharing Ratio of the Non-Contributing Limited Partner as of the payment date that was specified for the unpaid Capital Contribution (the “Prior Sharing Ratio”) shall be reduced to produce a new Sharing Ratio (the “New Sharing Ratio”) to be calculated according to the following formula: X Total Capital Contributions made to date + the unpaid Capital Contribution
(D) the Sharing Ratio of the Contributing Limited Partner shall be increased by an amount equal to the absolute value of the difference between the Prior Sharing Ratio and the New Sharing Ratio; and
(E) if the Contributing Limited Partner comprises more than one Limited Partner, the increase in the Contributing Limited Partners’ Capital Accounts and the increase in the Contributing Limited Partners’ Sharing Ratios pursuant to this Section 4.5. If Sections 4.6(a)(ii)(B) and 4.6(a)(ii)(D), respectively, shall be allocated pro rata to each Limited Partner constituting a non-Delinquent Contributing Limited Partner so desires in the proportion to fund such amount, such non-Delinquent Partner shall so notify each the amount of the unpaid Capital Contribution paid by such Contributing Limited Partner; or
(iii) exercising any other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate rights and remedies available at law or in such fundingequity.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to Contemporaneously with the execution and delivery of this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fractionAgreement, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent General Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, acknowledges that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior the Partnership has received the full Capital Contributions that the Series B Preferred Limited Partners are required to the Capital Contribution being made by another Partner or make and (ii) on or before the sixtieth (60th) day following the date that the participating nonsuch Series B Preferred Partners are not Non-Delinquent Partner(s) satisfied the Required Contribution, by making a Contributing Limited Partners and are not required to make Subsequent Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Contributions under Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.
Appears in 1 contract
Sources: Limited Partnership Agreement (Inergy Pipeline East, LLC)
FAILURE TO CONTRIBUTE. If either the IMC Partner (aor, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) If a or the FRP Partner fails (in any such case, the "Non-Contributing Partner") fails, in whole or in part, to contribute all make any cash contribution or defaults, in whole or in part, in any portion other obligation to pay money under this Agreement within fifteen (15) days of giving of a Required Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each due notice by either of the other nonPartners to the Non-Delinquent PartnersContributing Partner that such cash contribution is due or that the Non-Contributing Partner has defaulted in any other such obligation hereunder, who the IMC Partner (with respect to circumstances in which the FRP Partner is the Non-Contributing Partner) or the FRP Partner (with respect to circumstances in which the IMC Partner (or, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) is the Non-Contributing Partner), as the case may be (in either such case, the "Contributing Partner"), shall have the right to advance directly to the Partnership such additional cash contribution, or portion thereof, or such other payment of money, or portion thereof, as the Non-Contributing Partner has failed to make or defaulted on (the "Non-Contributing Partner's Share"), and such advance, together with a proportionate amount of the corresponding cash contribution or other payment, if any, made by such Contributing Partner, shall be deemed a loan by the Contributing Partner to the Partnership (the "Partner Loan"). A Partner Loan shall bear interest at the rate equal to the lower of: (i) the maximum rate allowed by law; or (ii) five (5) days thereafter percentage points over the Prime Rate. The Partner Loan shall be recouped and otherwise repaid from all funds which would otherwise have been available to elect make distributions which the Partners would otherwise be entitled to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to receive from the Partnership but for this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction3.03, the numerator all of which shall instead be paid by the Percentage Interest then held by such participating non-Delinquent Partnership to the Contributing Partner and applied to the denominator payment of which the Partner Loan and all interest thereon, until the same shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; providedhave been paid in full. It is understood, however, that if to the extent the principal and interest of a Partner Loan are not repaid in full by the Partnership from all funds which would otherwise have been available to make distributions (including any participating non-Delinquent Partner elects distributions pursuant to fund less than its full allocation of such amountSection 12.07(b)) to the Partners, the fully participating nonNon-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Contributing Partner shall be appropriately adjusted obligated to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in repay an amount equal to the Required Contribution (a “MakeNon-Up Contribution”) Contributing Partner's Share of the outstanding balance of the principal and paying interest of such Partner Loan upon commencement of the winding up of the Partnership in accordance with Section 12.02. Any amount which would otherwise have been available to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period make distributions from the date Partnership that is applied to any Partner Loan shall be credited first to any interest then due on such participating non-Delinquent Partner funded its NDP Amount Loan, and the balance of the distribution shall be credited against the outstanding principal balance of such Partner Loan. The exercise of the right to the date make a Partner Loan shall be in addition to any other rights or remedies that the Delinquent Contributing Partner makes its Makemay have under this Agreement or at law or in equity arising from the Non-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied Contributing Partner's (i) by failure to make the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) required cash contribution or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant default in any other obligation to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contributionpay money.
Appears in 1 contract
Sources: Partnership Agreement (Freeport McMoran Resource Partners Limited Partnership)
FAILURE TO CONTRIBUTE. (a) If by the required date under any approved Cash Notice, a Partner fails Member (the “Non-Contributing Member”) shall fail to contribute pay all or any part of its Requested Amount, the other Member or Members (each, a “Contributing Member”) (i) may pay to the Company as a Contribution the portion of a Required Contribution that such Partner the Requested Amount not paid by the Non-Contributing Member (a the “Delinquent PartnerDeficiency”) is required to make ), as provided in subsection (b) below, (ii) may advance directly to the Company the Deficiency as a recourse loan to the Company, as provided in subsection (c) below or (iii) may treat the Non-Contributing Member’s failure to contribute as a default under this AgreementAgreement (and as a Terminating Event as to the Non-Contributing Member). If there is more than one Contributing Member, thenthe payment or advance of the Deficiency described above shall be proportionate to each such Member’s Proportionate Share, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) provided that if any Contributing Member does not elect to fund all pay or any advance its full share of the Deficiency pursuant to clause (i) or (ii) above, such Contributing Member shall be treated as a Non-Contributing Member with respect to such share of the Deficiency and the other Contributing Member or Members may pay or advance the additional portion of the Delinquent PartnerDeficiency pursuant to clause (i) or (ii) above. Subject to Section 6.2, the remedies set forth in clauses (i), (ii) and (iii) shall be the exclusive remedies of the Contributing Member or Members for a Non-Contributing Member’s Required Contribution failure to pay or advance additional capital as required by this Agreement; if the Contributing Members avail themselves of either of the remedies in clauses (i) or (ii) above, the Non-Contributing Member’s failure shall not otherwise be treated as a Capital Contribution pursuant to default under this Section 4.5Agreement. If a non-Delinquent Partner so desires there is more than one Contributing Member, the election to fund such amount, such non-Delinquent Partner proceed under clause (i) or clause (ii) above shall so notify each require the unanimous decision of the other non-Delinquent PartnersContributing Members; in the absence of such unanimity, who the Contributing Members shall have five proceed under clause (5) days thereafter to elect to participate in such fundingii).
(b) The portion that each participating non-Delinquent Partner may fund In the event the Contributing Members elect to pay the Deficiency to the Company as a Capital Contribution pursuant to this Section 4.5 (Contribution, then, effective as of the “NDP Amount”) date of the payment, both the portion of the Deficiency so paid together with all Requested Amounts previously paid by the Contributing Member or Members in connection with the Cash Notice shall be equal deemed Contributions, and the Proportionate Shares of each of the Members shall be recalculated as follows: each Member’s Proportionate Share shall be adjusted to a percentage obtained by dividing such Member’s aggregate Contributions (including the product Deficiency Contribution) as of (x) such date by the delinquent total amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held Contributions by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation Members as of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)date.
(c) Notwithstanding anything in this Section 4.5 If the Contributing Member or Members elect to make a loan to the contraryCompany as provided above, both the portion of the Deficiency so advanced, together with all Requested Amounts previously paid or advanced by the Contributing Member or Members in connection with the Cash Notice (regardless of their initial characterization), shall be directly advanced to the Company by the Contributing Member or Members as a demand, recourse loan (a “Deficit Loan”). Each Deficit Loan shall bear interest at an annual rate of 20% (or, if lower, the Delinquent Partner may cure maximum rate allowed by applicable law), compounded monthly, and shall be payable on demand. Any payments on a Deficit Loan shall be credited first to any interest then due on the loan with the balance of such delinquency distributions to be credited against the outstanding principal balance of such loan.
(id) by contributing its Required Contribution prior If a Deficit Loan is not repaid in full within 30 days following demand at the election of the Contributing Member or Members, the loan may, at any time thereafter, be converted to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital an additional Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied Company by the Default Interest Rate for Contributing Member or Members in the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests amount of the Partners sum of the then outstanding balance of principal and interest on the Deficit Loan, and the Proportionate Shares of the Members shall be adjusted with all necessary increases or decreases pursuant to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(bformula set forth in subsection (b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (above based on total Capital Contributions). If the delinquency is remedied (i) by Contributing Member’s contribution of the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by amount of the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required ContributionDeficit Loan.
Appears in 1 contract
Sources: Operating Agreement (Cb Richard Ellis Corporate Facilities Management Inc)
FAILURE TO CONTRIBUTE. (a) If In the event that any Capital Member (each, a Partner “Non-Contributing Member”) fails to contribute timely make some or all of any Capital Contribution required to be made by such Capital Member pursuant to Section 3.4 (or any portion fails to post a Letter of a Required Credit in the amount of such Capital Contribution that in circumstances where such Partner posting would satisfy the Capital Member’s obligations under the Funding Notice) (in each case, a “Delinquent PartnerShortfall Amount”) is required to make as provided in this Agreement), then, while and such Partner is failure continues for a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion period of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter Business Days after receipt by such Non-Contributing Member of written notice from any other Capital Member specifying such failure, then DLJMB (in the case that the Non-Contributing Member is a Morgans Party) or Morgans Co. (in the case that the Non-Contributing Member is a DLJMB Party) may, in its sole discretion, take, or cause a DLJMB Party or Morgans Party, respectively, to elect take, any of the following actions (the Person taking such action or caused to participate take such action being the “Contributing Member”):
(i) make additional Capital Contributions (or post a Letter of Credit in lieu thereof, if permitted) (“Shortfall Contributions”) equal to some or all of the Shortfall Amount (in which case, subject to the receipt of all approvals required under Gaming Regulations (to the extent applicable at such fundingtime), the relative Percentage Interests of the Capital Members shall be adjusted pursuant to Section 3.5(d));
(ii) loan to the Company some or all of the Shortfall Amount (a “Company Loan”), provided that: (i) the sums thus advanced shall be deemed to be demand recourse loans from the Contributing Member to the Non-Contributing Member and a contribution of such sums to the Company by the Non-Contributing Member; (ii) such loans shall bear interest at the rate of interest equal to LIBOR, plus six percent (6%) per annum, (provided, however, that if at any time the interest rate provided for herein (the “Note Rate”) exceeds the Maximum Rate, the Note Rate shall be limited to the Maximum Rate, but any subsequent reductions in the Note Rate (i.e., by reason of a reduction in the LIBOR) shall not reduce the rate of interest accruing hereunder below the Maximum Rate until such time as the total amount of interest accrued and paid on such loan equals the amount that would have accrued on such loan if the Note Rate had at all times been in effect), from the date that the advance was made until the date that such advance, together with any reasonable costs and expenses incurred by the Company as a result of the Non-Contributing Member’s failure to contribute, and together with all interest accrued thereon, is repaid to the Contributing Member and the Company, as appropriate; (iii) unless otherwise paid, the repayment of such Company Loan shall be made from any distribution or reimbursement from the Company otherwise to be made to the Non-Contributing Member before any distribution or reimbursement is made to the Non-Contributing Member during the existence of the Company or after dissolution; and (iv) all such repayments shall be first applied to any reasonable costs and expenses incurred by the Company as a result of the Non-Contributing Member’s failure to contribute, then to interest earned and unpaid on the advance, and then to principal; and
(iii) if a DLJMB Party is a Contributing Member, DLJMB may secure New Financing and/or New Equity for the Company pursuant to Section 3.9.
(b) The portion that No right, power or remedy conferred upon any Capital Member (other than the Non-Contributing Member) in this Section 3.5 shall be exclusive, and each participating nonsuch right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 3.5, Article 11, pursuant to any other provision of this Agreement, or now or hereafter available at law or in equity or by statute or otherwise. In addition, and notwithstanding anything to the contrary in Section 11.1(c), if such failure of the Non-Delinquent Partner Contributing Member to make the required Capital Contribution continues for a period of ninety (90) days following notice thereof given by the Contributing Member to the Non-Contributing Member, and the Contributing Member has not theretofore made a Shortfall Contribution or delivered a Conversion Notice pursuant to Section 3.5(c) below with respect to such Capital Contribution, then (and only in such event) the Contributing Member may fund treat the failure of the Non-Contributing Member to make the required Capital Contribution as an Event of Default, and the Non-Contributing Member as a Defaulting Member, under Section 11.1(c).
(c) Provided that the Contributing Member has not elected to treat the failure of the Non-Contributing Member to make the required Capital Contribution (or failure to post a Letter of Credit in circumstance where such posting would satisfy the Capital Members’ obligations under the Capital Call Notice) as an Event of Default pursuant to Section 3.5(b) above, then with respect to any Company Loan made in connection with a Shortfall Amount, in the event that a Contributing Member shall have made a Company Loan and the Company Loan (plus all accrued and unpaid interest thereon) shall not have been repaid in full (either by the Non-Contributing Member or by the Company out of distributions to which the Non-Contributing Member would otherwise be entitled) within ninety (90) days after the making of such Company Loan, any Contributing Member may, by delivering a notice (the “Conversion Notice”) to the Non-Contributing Member at any time after the expiration of such ninety (90) day period, elect to terminate such Company Loan, convert the Company Loan to equity and have the Non-Contributing Member’s Percentage Interest reduced as set forth in clause (d) below; provided, however, that the Non-Contributing Member shall have the right during the ten (10) day period following the delivery by the Contributing Member of the Conversion Notice to repay in full the Company Loan or the unpaid portion thereof (together with all accrued and unpaid interest earned thereon), and if such repayment shall occur within such ten (10) day period, the Contributing Member shall have no further rights under this Section 3.5(c) with respect to such Company Loan.
(d) If a Contributing Member makes a Shortfall Contribution pursuant to this Section 4.5 (3.5(a)(i) or elects to terminate a Company Loan pursuant to Section 3.5(c) and the “NDP Amount”) Non-Contributing Member shall be equal fail to repay in full to the product Contributing Member the unpaid portion of the Company Loan (xplus all accrued and unpaid interest thereon) (with such amounts also treated as Shortfall Contributions) within the delinquent amount ten (10) day period referred to in such Section 3.5(c), then, subject to the receipt of all approvals required under Gaming Regulations (to the extent applicable at such Required Contribution multiplied time), the Percentage Interest of the Contributing Member shall be, at the election of the Contributing Member, adjusted pursuant to Section 3.6 or, alternatively, increased by (y) adding to such Percentage Interest an additional percentage, stated as a fraction, the numerator of which shall be is equal to 150% of the Percentage Interest then held by such participating non-Delinquent Partner Shortfall Contribution and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 is equal to the contrary, the Delinquent Partner may cure such delinquency sum of (i) by contributing its Required Contribution the Existing Equity immediately prior to the making of the Capital Contributions (and/or other increases in Committed Capital) of which the Shortfall Contribution being made by another Partner or was a part, plus (ii) on or before the sixtieth aggregate Capital Contributions (60thand/or other increases in Committed Capital) day following being made in connection with which the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Shortfall Contribution was made. Subject to the Partnership in an amount equal receipt of all approvals required under Gaming Regulations (to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date extent applicable at such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”time). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner the Non-Contributing Member shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) reduced by the Delinquent Partner making its Required Contribution or Make-Up Contribution percentage by which the Contributing Member’s Percentage Interest is increased pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contributionimmediately preceding sentence.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Hard Rock Hotel Holdings, LLC)
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute all or any portion of a Required Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each of the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) or Make-Up Contribution by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b4.6(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contribution.
Appears in 1 contract
Sources: Limited Partnership Agreement (CONE Midstream Partners LP)
FAILURE TO CONTRIBUTE. If either the IMC Partner (aor, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) If a or the FRP Partner fails (in any such case, the "Non-Contributing Partner") fails, in whole or in part, to contribute all make any cash contribution or defaults, in whole or in part, in any portion other obligation to pay money under this Agreement within fifteen (15) days of giving of a Required Contribution that such Partner (a “Delinquent Partner”) is required to make as provided in this Agreement, then, while such Partner is a Delinquent Partner, each non-Delinquent Partner may (but shall have no obligation to) elect to fund all or any portion of the Delinquent Partner’s Required Contribution as a Capital Contribution pursuant to this Section 4.5. If a non-Delinquent Partner so desires to fund such amount, such non-Delinquent Partner shall so notify each due notice by either of the other nonPartners to the Non-Delinquent PartnersContributing Partner that such cash contribution is due or that the Non-Contributing Partner has defaulted in any other such obligation hereunder, who the IMC Partner (with respect to circumstances in which the FRP Partner is the Non- Contributing Partner) or the FRP Partner (with respect to circumstances in which the IMC Partner (or, during the IMC GPCo Liquidation Period, either of Operations or IMC GPCo) is the Non-Contributing Partner), as the case may be (in either such case, the "Contributing Partner"), shall have the right to advance directly to the Partnership such additional cash contribution, or portion thereof, or such other payment of money, or portion thereof, as the Non-Contributing Partner has failed to make or defaulted on (the "Non-Contributing Partner's Share"), and such advance, together with a proportionate amount of the corresponding cash contribution or other payment, if any, made by such Contributing Partner, shall be deemed a loan by the Contributing Partner to the Partnership (the "Partner Loan"). A Partner Loan shall bear interest at the rate equal to the lower of: (i) the maximum rate allowed by law; or (ii) five (5) days thereafter percentage points over the Prime Rate. The Partner Loan shall be recouped and otherwise repaid from all funds which would otherwise have been available to elect make distributions which the Partners would otherwise be entitled to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as a Capital Contribution pursuant to receive from the Partnership but for this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction3.03, the numerator all of which shall instead be paid by the Percentage Interest then held by such participating non-Delinquent Partnership to the Contributing Partner and applied to the denominator payment of which the Partner Loan and all interest thereon, until the same shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; providedhave been paid in full. It is understood, however, that if to the extent the principal and interest of a Partner Loan are not repaid in full by the Partnership from all funds which would otherwise have been available to make distributions (including any participating non-Delinquent Partner elects distributions pursuant to fund less than its full allocation of such amountSection 12.07(b)) to the Partners, the fully participating nonNon-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Contributing Partner shall be appropriately adjusted obligated to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in repay an amount equal to the Required Contribution (a “MakeNon-Up Contribution”) Contributing Partner's Share of the outstanding balance of the principal and paying interest of such Partner Loan upon commencement of the winding up of the Partnership in accordance with Section 12.02. Any amount which would otherwise have been available to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period make distributions from the date Partnership that is applied to any Partner Loan shall be credited first to any interest then due on such participating non-Delinquent Partner funded its NDP Amount Loan, and the balance of the distribution shall be credited against the outstanding principal balance of such Partner Loan. The exercise of the right to the date make a Partner Loan shall be in addition to any other rights or remedies that the Delinquent Contributing Partner makes its Makemay have under this Agreement or at law or in equity arising from the Non-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied Contributing Partner's (i) by failure to make the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) required cash contribution or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant default in any other obligation to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contributionpay money.
Appears in 1 contract
FAILURE TO CONTRIBUTE. (a) If a Partner fails to contribute all or any portion of a Required Contribution that such Limited Partner (a the “Delinquent Defaulting Partner”) is required fails to make such Limited Partner’s Capital Contribution within the time period prescribed in the applicable Contribution Agreement or as provided in this Agreement (i.e., in response to a Capital Call), and the other Limited Partner (the “Non-Defaulting Partner”) has made its Capital Contribution in accordance with this Agreement or the applicable Contribution Agreement, thenthe General Partner shall so inform the Defaulting Partner and the Non-Defaulting Partner within twenty (20) Business Days, while and, subject to the limitations provided below, the Non-Defaulting Partner shall have the right, but not the obligation, to:
(i) Withdraw the Capital Contribution (if the Partnership is capable of refunding such Capital Contribution) it made when the Defaulting Partner is a Delinquent Partnerfailed to make its Capital Contribution, each nonin which event the Non-Delinquent Defaulting Partner may (but shall have no obligation toliability for failure to contribute such Capital Contribution, or designate any portion of the Capital Contribution the Non-Defaulting Partner has not withdrawn as an advance to the Partnership as a Partnership Loan; and / or
(ii) elect to fund pay all or any portion of the Delinquent amount due from the Defaulting Partner (the “Deficiency Amount”) to the Partnership (a “Default Contribution”), which amount may be designated by the Non-Defaulting Partner as (A) an advance directly to the Partnership as a Partnership Loan (as defined in Section 6.4(c)), or (B) designate such amount as part Capital Contribution and part Partnership Loan, in such proportion as is designated by the Non-Defaulting Partner’s Required Contribution as . These provisions shall be applicable each time that a Limited Partner shall fail to contribute a Capital Contribution pursuant to as required in this Section 4.5Agreement and the applicable Contribution Agreement. If a nonThe Non-Delinquent Partner so desires to fund such amount, such non-Delinquent Defaulting Partner shall so notify each elect which of the other non-Delinquent Partnersforegoing remedies it will pursue and, who shall have five if it so chooses, advance to the Partnership the Deficiency Amount, within twenty (520) days thereafter of receipt of the notice by the General Partner of the Defaulting Partner’s failure to make its Capital Contribution. Notwithstanding the foregoing, PGGM PRE Fund may not elect to participate in such funding.
(b) The portion that each participating non-Delinquent Partner may fund as treat a Capital Default Contribution pursuant to this Section 4.5 (the “NDP Amount”) shall be equal to the product of (x) the delinquent amount of such Required Contribution multiplied by (y) a fraction, the numerator of which shall be the Percentage Interest then held by such participating non-Delinquent Partner and the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, if, after the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions).
(c) Notwithstanding anything in this Section 4.5 to the contrary, the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner or (ii) on or before the sixtieth (60th) day following the date that the participating non-Delinquent Partner(s) satisfied the Required Contribution, by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests of the Partners shall be adjusted with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third6.4(b), the PGGM PRE Fund’s Percentage Interest and in the Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contributionwould exceed 49%.
Appears in 1 contract
Sources: Limited Partnership Agreement (Inland Real Estate Corp)
FAILURE TO CONTRIBUTE. (a) 3.5.1 Default If a any Limited Partner fails to contribute timely all or any portion of a Required Contribution that capital contribution or other payment required to be made by such Limited Partner, make any payment to the AIFM or the Management Company or return any distribution which such Limited Partner (a “Delinquent Partner”) is required to return (in each case, whether pursuant to this Agreement or any AIV Agreement), and such failure continues for a period of five Business Days after receipt by such Limited Partner of written notice from the General Partner specifying such failure, then such Limited Partner will be designated a “Defaulting Limited Partner” and the General Partner may, in its sole discretion, then take any one or more of the following actions (unless the Limited Partner has cured its failure to make the required contribution within such five-Business Day period and reimbursed the Fund or the Alternative Vehicle, as provided in this Agreementapplicable, then, while for all costs and expenses incurred as a result of such Partner is a Delinquent Partner, each non-Delinquent failure):
(a) The General Partner may (but shall have no obligation to) elect to fund all sell the Defaulting Limited Partner’s Interest or any portion thereof to any Partner, including the General Partner, or to any other Person without further notice to the Defaulting Limited Partner. Such Interest may be sold for the lesser of (i) 50% of the Delinquent value of the Defaulting Limited Partner’s Required Contribution interest in each Investment, measured by the Fair Value of each such Investment and the Defaulting Limited Partner’s Sharing Percentage therein (or, if lower, the amount actually paid for such Interest by a third party in a sale on an arm’s-length basis) and (ii) 50% of that portion of the Defaulting Limited Partner’s Capital Contributions attributable to each Investment and on such other terms as the General Partner may determine in its sole discretion. The proceeds of such sale will be applied, first, to the payment of Management Fees with respect to which the Defaulting Limited Partner failed to make a Capital Contribution, if any, second, to the payment of any costs and expenses incurred by the Fund or any Alternative Vehicle as a result of the Defaulting Limited Partner’s failure to contribute, and third, to the advance payment of Management Fees that otherwise would have been payable by the Defaulting Limited Partner assuming termination of the Investment Period on the sixth anniversary of the commencement of the Investment Period and liquidation of the investments in which the Defaulting Limited Partner has an interest on the 13th anniversary of the date on which the first Portfolio Investment was made, in both cases reduced to take into account the amount of the Defaulting Limited Partner’s Capital Contribution Commitment (or Unused Capital Commitment if only the Unused Capital Commitment of such Defaulting Limited Partner is sold) and Sharing Percentage of investments sold to other Partners or other Persons pursuant to this Section 4.53.5.1 or any comparable provision in any AIV Agreement, with the remainder, if any, to be remitted to the Defaulting Limited Partner. If a non-Delinquent Thereafter, the Defaulting Limited Partner so desires will not be entitled to fund such amount, such non-Delinquent Partner shall so notify each of make any further Capital Contributions to the other non-Delinquent Partners, who shall have five (5) days thereafter to elect to participate in such fundingFund.
(b) The General Partner may segregate the Capital Account of the Defaulting Limited Partner on the books of the Fund, and the Defaulting Limited Partner thereafter will not be allocated any portion that each participating of Net Income or Current Income (which will instead be allocated to the non-Delinquent defaulting Partners), or otherwise be taken account of in any determination of Capital Accounts, Percentage Interests or Sharing Percentages, but such Defaulting Limited Partner may fund as a Capital Contribution will be allocated Net Loss and its share of Fund Expenses. A Defaulting Limited Partner will not be entitled to any distributions under Article 5 until the completion of the dissolution, liquidation and termination of the Fund. Upon the completion of the dissolution, liquidation and termination of the Fund, after the payment in full of all amounts required to be paid pursuant to this Section 4.5 (3.5.1(a) to Persons other than the “NDP Amount”) shall be Defaulting Limited Partner, the Fund will pay the Defaulting Limited Partner an amount equal to the product lesser of its unreturned Capital Contributions and its Capital Account as of the date of the completion of the dissolution, liquidation and termination of the Fund, less any costs and expenses (xincluding the costs of any borrowing) incurred by or on behalf of the delinquent amount Fund in connection with such default. To the extent permitted by law, each Defaulting Limited Partner hereby irrevocably waives any right to receive any payments from the Fund, demand an accounting or partition of such Required Contribution multiplied by (y) a fractionthe Fund or bring any action for dissolution of the Fund, in each case, prior to the numerator completion of which shall be the Percentage Interest then held by such participating non-Delinquent Partner dissolution, liquidation and termination of the denominator of which shall be the aggregate Percentage Interest held by all such participating non-Delinquent Partners; provided, that if any participating non-Delinquent Partner elects to fund less than its full allocation of such amount, the fully participating non-Delinquent Partners shall be entitled to take up such shortfall (allocated, as necessary, based on their respective Percentage Interests). Upon such funding as a Capital Contribution, the Partnership Interest and Percentage Interest of each Partner shall be appropriately adjusted to reflect all such funding (based on total Capital Contributions)Fund.
(c) Notwithstanding anything in this Section 4.5 The General Partner may withhold from and set off against any distribution otherwise payable to the contrary, Defaulting Limited Partner the Delinquent Partner may cure such delinquency (i) by contributing its Required Contribution prior to the Capital Contribution being made by another Partner amount of any contribution or (ii) on or before the sixtieth (60th) day following the date payment required hereunder that the participating non-Delinquent Partner(sDefaulting Limited Partner failed to contribute or pay, plus any costs and expenses (including the costs of any borrowing) satisfied the Required Contribution, incurred by making a Capital Contribution to the Partnership in an amount equal to the Required Contribution (a “Make-Up Contribution”) and paying to each participating non-Delinquent Partner an amount equal to its respective NDP Amount multiplied by the Default Interest Rate for the period from the date such participating non-Delinquent Partner funded its NDP Amount to the date that the Delinquent Partner makes its Make-Up Contribution (the “Default Interest Amount”). If a Delinquent Partner cures its delinquency pursuant to Section 4.5(c)(ii) by making a Make-Up Contribution and paying the Default Interest Amount, then (A) first, the Partnership shall distribute to each existing Partner that is a participating non-Delinquent Partner the NDP Amount that such participating non-Delinquent Partner funded pursuant to Section 4.5(b), (B) second, the respective Capital Accounts and Percentage Interests or on behalf of the Partners shall be adjusted Fund in connection with all necessary increases or decreases to return the Partners’ Capital Accounts and Percentage Interests status quo ante application of Section 4.5(b) and (C) third, the Percentage Interest and Partnership Interests of each Partner shall be appropriately adjusted to reflect the Make-Up Contribution (based on total Capital Contributions). If the delinquency is remedied (i) by the Delinquent Partner making its Required Contribution or Make-Up Contribution pursuant to this Section 4.5(c) or (ii) by funding by the non-Delinquent Partner(s) as a Capital Contribution pursuant to Section 4.5(b), the Delinquent Partner shall no longer be deemed to be a Delinquent Partner with respect to the unfunded Required Contributionsuch default.
Appears in 1 contract
Sources: Limited Partnership Agreement