Common use of FAILURE TO CONTRIBUTE Clause in Contracts

FAILURE TO CONTRIBUTE. (a) If a Member does not contribute by the time required all or any portion of a capital contribution that such Member ("Delinquent Member") is required to make as provided in this LLC Agreement, the Company (by vote of at least a majority of the Percentage Interests remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice to such Delinquent Member, the following remedy: (i) permitting the other Members in proportion to their Membership Interest or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Delinquent Member's capital contribution that is in default, with the following results: (1) the sum advanced constitutes a loan from the Lending 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; (2) the principal balance of the loan and all accrued unpaid interest thereon (collectively, the "Obligation") is due and payable in whole on the tenth Business Day after the day written demand requesting payment of the Obligation is made by the Lending Member to the Delinquent Member; (3) the amount lent bears interest at the Default Interest Rate from the date on which the advance is deemed made until the date that the loan, together with all interest accrued thereon and all costs and expenses associated therewith ("Loan Costs"), is repaid to the Lending Member; (4) 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 Lending Member until the Obligation and any Loan Costs have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest, second to Loan Costs, and finally to principal); (5) the payment of the Obligation and Loan Costs is secured by a security interest in the Delinquent Member's Membership Interest, as more fully set forth in Section 4.06(c); and (6) the Lending Member has 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, without limitation, court proceedings and exercising the rights of a secured party under the Uniform Commercial Code of the State of Delaware) that the Lending Member may deem appropriate to obtain payment from the Delinquent Member of the Obligation and all Loan Costs. (b) If a Delinquent Member does not pay the Obligation and Loan Costs when due, or if no Member is willing to become a Lending Member, the Company (by vote of at least a majority of the Percentage Interest remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice to such Delinquent Member, one or more of the following remedies: (i) taking such action (including, without limitation, court proceedings) as the Company may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's capital contribution that is in default, along with the costs and expenses associated with the collection of such Delinquent Member's capital contribution; (ii) exercising any other rights and remedies available at law or in equity; or (iii) the other Members (by affirmative vote of at least a majority of the Membership Interest held by such other Members) may elect to make any such unpaid capital contributions to the Company and adjust the Percentage Interest for each Member to equal the percentage obtained by dividing (A) the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by such Member (including any capital contributions made by such Member under this Section), plus such Member's pro-rata share of the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to such Member by (B) three times the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by the Members (including any capital contributions made by the Members under this Section), plus the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to the Members. This formula shall apply only to such items described in subsections (A) and (B) of this Section 4.06(b)(iii) that have occurred since the Commencement Date. (c) Each Member grants to the Company and to each Lending Member with respect to any Obligation and Loan Costs owed to such Lending Member by that Member as a Delinquent Member pursuant to Section 4.06(a)(i), as security, equally and ratably, a security interest in its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. The security interest secures the payment of all capital contributions such Member has agreed to make and the payment of any Obligation and Loan Costs owed to a Lending Member by such Member as a Delinquent Member pursuant to Section 4.06(a)(i). On any default in the payment of a capital contribution or in the payment of any Obligation or Costs, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware with respect to the security interest granted in this Section 4.06(c). Each Member shall execute and deliver to the Company and the Lending Member, as applicable, all financing statements and other instruments that the Company or the Lending Member, as applicable, may request to effectuate and carry out the preceding provisions of this Section 4.06(c). At the option of the Company or Lending Member, as applicable, this LLC Agreement or a carbon, photographic, or other copy thereof may serve as a financing statement.

FAILURE TO CONTRIBUTE. (a) If a any Series A Preferred Member does not contribute by the time required all or any portion of a capital contribution that such Member ("Delinquent Member") is required fails to make as provided an additional Capital Contribution in this LLC Agreement, accordance with Section 4.3(a) in the Company full amount required by any Additional Funding Request (by vote of at least a majority assuming there is no good faith dispute regarding whether the conditions set forth in Section 3.2(a) of the Percentage Interests remaining after excluding Preferred Purchase Agreement were satisfied or waived with respect to such Additional Funding Request) on the Percentage Interest due date therefor, a “Preferred Payment Default” shall be deemed to have occurred in the amount of the Delinquent MemberDefault Amount. 31 (b) may exercise, on written notice to such Delinquent Member, In the following remedyevent a Preferred Payment Default has occurred: (i) permitting the other Members Company shall have the right, but not the obligation, to sell additional Series A Preferred Units to a third party (a “Third-Party Purchaser”), at the Series A Preferred Issue Amount per Series A Preferred Unit and otherwise on the same terms as the Series A Preferred Units held by the defaulting Series A Preferred Member (such Member, a “Defaulting Preferred Member”), equal in proportion number to their Membership Interest or the number of Series A Preferred Units that would have been issued to the Defaulting Preferred Member in exchange for receipt of the amount of such other percentages as they may agree Capital Contribution not paid (the "Lending Member," whether one or more), to advance the portion of the Delinquent Member's capital contribution that is in default, with the following results: (1) the sum advanced constitutes a loan from the Lending 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; (2) the principal balance of the loan and all accrued unpaid interest thereon (collectively, the "Obligation") is due and payable in whole on the tenth Business Day after the day written demand requesting payment of the Obligation is made by the Lending Member to the Delinquent Member; (3) the amount lent bears interest at the “Default Interest Rate from the date on which the advance is deemed made until the date that the loan, together with all interest accrued thereon and all costs and expenses associated therewith ("Loan Costs"), is repaid to the Lending Member; (4) 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 Lending Member until the Obligation and any Loan Costs have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest, second to Loan Costs, and finally to principalAmount”); (5ii) the payment of Company shall have the Obligation and Loan Costs is secured by a security interest in right, but not the Delinquent Member's Membership Interestobligation, as more fully set forth in Section 4.06(c)to cause the Remaining Commitment with respect to the Defaulting Preferred Member to be reduced to $0.00; and (6iii) the Lending Member has the rightCompany may, in addition to the at its option, pursue any 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, without limitation, court proceedings and exercising equity against the rights of a secured party under the Uniform Commercial Code of the State of Delaware) that the Lending Member may deem appropriate to obtain payment from the Delinquent Member of the Obligation and all Loan Costs. (b) If a Delinquent Member does not pay the Obligation and Loan Costs when due, or if no Member is willing to become a Lending Member, the Company (by vote of at least a majority of the Percentage Interest remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice to such Delinquent Member, one or more of the following remedies: (i) taking such action (including, without limitation, court proceedings) as the Company may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's capital contribution that is in default, along with the costs and expenses associated with the collection of such Delinquent Member's capital contribution; (ii) exercising any other rights and remedies available at law or in equity; or (iii) the other Members (by affirmative vote of at least a majority of the Membership Interest held by such other Members) may elect to make any such unpaid capital contributions to the Company and adjust the Percentage Interest for each Member to equal the percentage obtained by dividing (A) the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by such Member (including any capital contributions made by such Member under this Section), plus such Member's pro-rata share of the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to such Member by (B) three times the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by the Members (including any capital contributions made by the Members under this Section), plus the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to the Members. This formula shall apply only to such items described in subsections (A) and (B) of this Section 4.06(b)(iii) that have occurred since the Commencement Date. (c) Each Member grants to the Company and to each Lending Member with respect to any Obligation and Loan Costs owed to such Lending Member by that Member as a Delinquent Defaulting Preferred Member pursuant to Section 4.06(a)(i)the Preferred Purchase Agreement or this Agreement, as security, equally and ratably, a security interest in its Membership Interest and including (x) the proceeds thereof, all under the Uniform Commercial Code right to specific performance of the State of Delaware. The security interest secures the payment of all capital contributions such Member has agreed Defaulting Preferred Member’s obligation to make such additional Capital Contribution and the payment (y) pursuing a claim for actual damages of any Obligation and Loan Costs owed to a Lending Member by such Member as a Delinquent Member pursuant to Section 4.06(a)(i). On any default in the payment of a capital contribution or in the payment of any Obligation or Costs, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware with respect to the security interest granted in this Section 4.06(c). Each Summit Member shall execute and deliver to the Company and the Lending Member, as applicable, all financing statements and other instruments that the Company or the Lending Member, as applicable, may request to effectuate and carry out the preceding provisions of this Section 4.06(c). At the option of the Company or Lending Member, as applicable, this LLC Agreement or a carbon, photographic, or other copy thereof may serve as a financing statementresulting from such Preferred Payment Default.

FAILURE TO CONTRIBUTE. If any Member fails or refuses for any reason to make in a timely manner any part or all of a Required Contribution, such Member shall be in default hereunder and shall be deemed to be a “Defaulting Member” to the extent of the unpaid part of the Required Contribution (athe “Unpaid Required Contribution”). For a period often (10) If a days after the earlier of the expiration of the thirty (30) day period described in Section 3.3 or notice to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ from the Defaulting Member does that the Defaulting Member shall not contribute by the time required make all or any portion of the Additional Capital Contribution, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Class A Member, shall have the right — but not the obligation — to make all or such part of the Unpaid Required Contribution as he so determines. In the event or to the extent ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ does not make all of the Unpaid Required Contribution, for a capital contribution period of ten (10) days after the earlier of the expiration of the ten (10) day period described in the preceding sentence or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇’ giving notice to the other Members holding Class B Units of his intention not to make the entire Unpaid Required Contribution, Members holding Class B Units other than the Defaulting Member shall have the right — but not the obligation — to make a proportion of the remaining Unpaid Required Contribution equal to the proportion that the number of Class B Units held by such Member bears to the total issued and outstanding Class B Units ("Delinquent excluding those held by the Defaulting Member"). In the event any portion of the Unpaid Required Contribution remains unmade at the end of the ten (10) is required day period described in the immediately preceding sentence, the following shall apply: (a) The Unpaid Required Contribution shall constitute an obligation of such Defaulting Member to make as provided the Company and shall bear interest from the from the [sic?] expiration of the thirty (30) day period described in this LLC AgreementSection 3.3 at a floating annual rate of interest equal to the lesser of (i) eight percent (8%), or (ii) the maximum rate permitted by law. Interest shall be compounded monthly. The Company may upon the decision of a Majority in Interest (determined by excluding all of the Units of the Defaulting Member), institute suit in any court of competent jurisdiction to enforce such obligation of the Defaulting Member. In addition, the Company (by vote of at least a majority of the Percentage Interests remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice shall be entitled to such Delinquent Member, the following remedy: (i) permitting the other Members in proportion to their Membership Interest or recover in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of the Delinquent Member's capital contribution that is in default, with the following results: (1) the sum advanced constitutes a loan from the Lending 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; (2) the principal balance of the loan and all accrued unpaid interest thereon (collectively, the "Obligation") is due and payable in whole on the tenth Business Day after the day written demand requesting payment of the Obligation is made by the Lending Member to the Delinquent Member; (3) the amount lent bears interest at the Default Interest Rate from the date on which the advance is deemed made until the date that the loan, together with all interest accrued thereon and suit all costs and expenses associated therewith ("Loan Costs")expenses, is repaid to the Lending Member; (4) all distributions from including, but not limited to, court costs and reasonable attorneys’ fees, thereby incurred by the Company that otherwise would be made to and any damages (except incidental or consequential damages) sustained by the Delinquent Member (whether before or after dissolution Company as a result of the Company) instead shall be paid to default by the Lending Member until the Obligation and any Loan Costs have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest, second to Loan Costs, and finally to principal); (5) the payment of the Obligation and Loan Costs is secured by a security interest in the Delinquent Defaulting Member's Membership Interest, as more fully set forth in Section 4.06(c); and (6) the Lending Member has 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, without limitation, court proceedings and exercising the rights of a secured party under the Uniform Commercial Code of the State of Delaware) that the Lending Member may deem appropriate to obtain payment from the Delinquent Member of the Obligation and all Loan Costs. (b) If a Delinquent By executing this Agreement, each Member does not pay the Obligation and Loan Costs when due, or if no Member is willing shall be deemed to become a Lending Member, the Company (by vote of at least a majority of the Percentage Interest remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice to such Delinquent Member, one or more of the following remedies: (i) taking such action (including, without limitation, court proceedings) as the Company may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's capital contribution that is in default, along with the costs and expenses associated with the collection of such Delinquent Member's capital contribution; (ii) exercising any other rights and remedies available at law or in equity; or (iii) the other Members (by affirmative vote of at least a majority of the Membership Interest held by such other Members) may elect to make any such unpaid capital contributions have granted to the Company a first and adjust the Percentage Interest for each Member to equal the percentage obtained by dividing (A) the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by such Member (including any capital contributions made by such Member under this Section), plus prior lien and security interest upon such Member's pro-rata share of the Company's earnings before interest, income taxes, depreciation and amortization (calculated ’s Units as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to such Member by (B) three times the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by the Members (including any capital contributions made by the Members under this Section), plus the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to the Members. This formula shall apply only to such items described in subsections (A) and (B) of this Section 4.06(b)(iii) that have occurred since the Commencement Date. (c) Each Member grants to the Company and to each Lending Member with respect to any Obligation and Loan Costs owed to such Lending Member by that Member as a Delinquent Member pursuant to Section 4.06(a)(i), as security, equally and ratably, a security interest in its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. The security interest secures for the payment of all capital contributions Required Contributions of such Member. This Agreement shall be deemed to be a security agreement with respect to such security interest and collateral and each Member has agreed shall promptly execute and deliver to make the Company any financing statements or other instruments that the Company, or any other Member, may request for purposes of perfecting or continuing such security interest. Upon the failure of a Member to execute and deliver such financing statements or other instruments, the payment other Members, and each of any Obligation them, as attorney-in-fact for such Member, may execute and Loan Costs owed deliver such financing statements or other instruments for, in the name and on behalf of such Member. With respect to a Lending Member by such Member as a Delinquent Member pursuant to Section 4.06(a)(i). On any default in Defaulting Member, the payment Company, acting upon the decisions of a capital contribution or Majority in Interest (determined by excluding all of the payment Units of any Obligation or Coststhe Defaulting Member), the Company or the Lending Member, as applicable, is entitled to shall have all of the rights and remedies of a secured party under the Colorado Uniform Commercial Code Code, including, without limitation, and in addition to the rights under such law, the right to sell, effective as of the State first day of Delaware with respect the fiscal quarter in which the default occurs or such subsequent date as the Company may determine, by public or private sale upon five (5) days advance notice to the security interest granted in this Section 4.06(c). Each Member shall execute Defaulting Member, the Defaulting Member’s Units or any part thereof, and deliver to the Company and the Lending Memberother Members shall be permitted purchasers at any such sale. In addition, as applicable, all financing statements and other instruments that the Company shall have the right to retain and set-off against the Unpaid Required Contribution of a Defaulting Member and any accrued interest thereon all amounts becoming otherwise distributable (including all distributions, mandatory or otherwise to which the Lending Member, as applicable, may request Defaulting Member would otherwise have been entitled under Section 4.1 hereof) or payable to effectuate such Defaulting Member by the Company. Any amount so retained and carry out the preceding provisions of this Section 4.06(c). At the option of set-off by the Company shall be deemed to be a constructive cash distribution to the Defaulting Member and a constructive repayment by such Member to the Company. Any repayment, whether constructive or Lending actual, shall be applied first against any unpaid accrued interest on the Defaulting Member, as applicable, this LLC Agreement or a carbon, photographic, or other copy thereof may serve as a financing statement’s Unpaid Required Contribution and the remainder shall be applied against such Member’s Unpaid Required Contribution.

FAILURE TO CONTRIBUTE. (a) 3.3.1 If a any Member does not fails to contribute by the time required timely all or any portion of any Capital Contribution required to be made by such Member pursuant to this Agreement and such failure continues for a capital contribution that period of five (5) Business Days after receipt by such Member (such Member being hereinafter referred to as a "Delinquent MemberDELINQUENT MEMBER") of notice from the Managing Members specifying such failure (such failure being hereinafter referred to as a "DEFAULT"), then the Managing Members (or, in the event a Managing Member is required to make as provided in this LLC Agreement, the Company (by vote of at least a majority of the Percentage Interests remaining after excluding the Percentage Interest of the Delinquent Member) may exercise, on written notice to such Delinquent Member, the following remedy: (i) permitting other Managing Member or, in the other event both Managing Members in proportion to their Membership Interest or in such other percentages as they may agree (the "Lending Member," whether one or more), to advance the portion of are the Delinquent Member's capital contribution that is Members, a Majority in default, with the following results: (1) the sum advanced constitutes a loan from the Lending 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; (2) the principal balance of the loan and all accrued unpaid interest thereon (collectively, the "Obligation") is due and payable in whole on the tenth Business Day after the day written demand requesting payment of the Obligation is made by the Lending Member to the Delinquent Member; (3) the amount lent bears interest at the Default Interest Rate from the date on which the advance is deemed made until the date that the loan, together with all interest accrued thereon and all costs and expenses associated therewith ("Loan Costs"), is repaid to the Lending Member; (4) 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 Lending Member until the Obligation and any Loan Costs have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest, second to Loan Costs, and finally to principal); (5) the payment of the Obligation and Loan Costs is secured by a security interest in the Delinquent Member's Membership Interest, as more fully set forth in Section 4.06(c); and (6) the Lending Member has 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, without limitation, court proceedings and exercising the rights of a secured party under the Uniform Commercial Code of the State of Delaware) that the Lending Member may deem appropriate to obtain payment from the Delinquent Member of the Obligation and all Loan Costs. (b) If a Delinquent Member does not pay the Obligation and Loan Costs when due, or if no Member is willing to become a Lending Member, the Company (by vote of at least a majority of the Percentage Interest remaining after excluding the Percentage Interest of the Delinquent Memberother Members) may exercisemay, on written notice to such Delinquent Memberat their option, take one or more of the following remediesactions: (ia) taking Take such action (including, without limitation, court proceedingsthe filing of a suit) as the Company may they deem appropriate to obtain payment by the Delinquent Member of the that portion of its Capital Contribution which is in default, together with interest thereon at the rate of interest equal to five percent (5%) per annum plus the prime rate listed from time to time in ---- ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Journal (which listing appears as of the ----------------------- date hereof under the caption "Money Rates") or, if such listing is no longer published, then the reference rate offered at such time by the Bank of America ▇▇&▇▇, measured from the date that such Capital Contribution was due until the date that such Capital Contribution, together with any costs and expenses incurred by the Company as a result of the Default, and together with all interest accrued thereon, is paid to the Company. Until all such amounts have been paid, all distributions that would otherwise be made to such Delinquent Member shall be withheld in partial satisfaction of such obligations and shall be first applied to any costs and expenses incurred by the Company as a result of the Default, then to interest earned and unpaid, and then to principal; (b) Advance on a pro rata basis based upon the relative Percentage Interests of the participating Members, that portion of such contribution which is in default, on the following terms: (A) the sums thus advanced shall be deemed to be demand recourse loans from the Members participating therein to the Delinquent Member and a Capital Contribution of such sums to the Company by the Delinquent Member; (B) such loans shall bear interest at the rate of interest equal to five percent (5%) per annum plus the prime rate listed ---- from time to time in The Wall Street Journal (which listing ----------------------- appears as of the date hereof under the caption "Money Rates") or, if such listing is no longer published, then the reference rate offered at such time by the Bank of America NT&SA, measured from the date that the advance was made until the date that such advance, together with any costs and expenses incurred by the Company as a result of the Default, and together with all interest accrued thereon, is repaid to the Members; (C) unless otherwise paid, the repayment of these loans shall be made from any and all distributions of the Company otherwise to be made to the Delinquent Member, with the full amount of such loan (plus all accrued interest thereon) to be refunded in full before any distribution is made to the Delinquent Member during the term of the Company or upon dissolution; and (D) all such repayments shall be first applied to any costs and expenses incurred by the Company as a result of the Default, then to interest earned and unpaid, and then to principal; (c) Unless the Delinquent Member shall have theretofore cured its failure to make the required Capital Contribution (and reimbursed the Company for all costs and expenses incurred as a result of such Default), sell the Delinquent Member's capital contribution that is interest in defaultthe Company to the other Members wishing to participate (other than the Delinquent Member) on a pro rata basis based upon the relative Percentage Interests of the other participating Members or to any other Person, along with to the extent the Members fail to purchase their pro rata share, without further notice to the Delinquent Member on the terms and for such consideration as the contributing Member(s) may determine in its sole and absolute discretion. Proceeds from any such sale shall be retained by the Company or the Members (as the case may be) to the extent of the amount, including interest, costs and expenses associated with (including, without limitation, any and all costs and expenses incurred as a result of the collection of such Default), then owing to the Company or the Members (as the case may be) (the Delinquent Member remaining liable for any deficiency); any excess shall be paid to the Delinquent Member's capital contribution;; and/or (iid) exercising any Exercise such other rights and remedies to which the contributing Member(s) or the Company may be entitled at law or in equity or by statute. 3.3.2 No right, power or remedy conferred pursuant to this Paragraph --------- 3.3 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Paragraph 3.3 or --------- now or hereafter available at law or in equity; or (iii) the other Members (equity or by affirmative vote of at least a majority of the Membership Interest held by such other Members) may elect to make any such unpaid capital contributions to the Company and adjust the Percentage Interest for each Member to equal the percentage obtained by dividing (A) the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by such Member (including any capital contributions made by such Member under this Section), plus such Member's pro-rata share of the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to such Member by (B) three times the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by the Members (including any capital contributions made by the Members under this Section), plus the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to the Members. This formula shall apply only to such items described in subsections (A) and (B) of this Section 4.06(b)(iii) that have occurred since the Commencement Datestatute or otherwise. (c) Each Member grants to the Company and to each Lending Member with respect to any Obligation and Loan Costs owed to such Lending Member by that Member as a Delinquent Member pursuant to Section 4.06(a)(i), as security, equally and ratably, a security interest in its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. The security interest secures the payment of all capital contributions such Member has agreed to make and the payment of any Obligation and Loan Costs owed to a Lending Member by such Member as a Delinquent Member pursuant to Section 4.06(a)(i). On any default in the payment of a capital contribution or in the payment of any Obligation or Costs, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware with respect to the security interest granted in this Section 4.06(c). Each Member shall execute and deliver to the Company and the Lending Member, as applicable, all financing statements and other instruments that the Company or the Lending Member, as applicable, may request to effectuate and carry out the preceding provisions of this Section 4.06(c). At the option of the Company or Lending Member, as applicable, this LLC Agreement or a carbon, photographic, or other copy thereof may serve as a financing statement.

FAILURE TO CONTRIBUTE. If a Member (a "Defaulting Member") fails to make any Additional Capital Contribution in full within the required time, then a Member who has paid its Profit Ratio of the required Additional Capital Contribution (a "Performing Member") may take any or all of the following actions: (a) If a Member does not contribute by the time required Take any and all or any portion action (including litigation) on behalf of a capital contribution that such Member ("Delinquent Member") is required to make as provided in this LLC Agreement, the Company (by vote of at least a majority or in the Performing Member's own right to obtain payment of the Percentage Interests remaining after excluding Defaulting Member's Additional Capital Contribution, together with interest thereon at the Percentage Default Interest Rate from the date the Additional Capital Contribution was due, all at the cost and expense of the Delinquent Defaulting Member) may exercise, on written notice to such Delinquent Member, the following remedy:. (ib) permitting the other Members in proportion to their Membership Interest or in such other percentages as they may agree (the "Lending Member," whether one or more), to Make an advance the portion of the Delinquent Member's capital contribution that is in default, with the following results: (1) the sum advanced constitutes a loan from the Lending Member to the Delinquent Member and a capital contribution of that sum to the Company in an amount up to the Additional Capital Contribution that the Defaulting Member failed to make. Such advance shall be treated as a loan to the Defaulting Member by the Delinquent Performing Member pursuant to the applicable provisions of this Agreement; (2) the principal balance of the loan and all accrued unpaid interest thereon (collectivelyan "Interim Loan"), the "Obligation") is due and payable in whole on the tenth Business Day after the day written demand requesting payment of the Obligation is made by the Lending Member to the Delinquent Member; (3) the amount lent bears with interest at the Default Interest Rate from the date on which such advance was made. If the advance is deemed made until Defaulting Member fails to repay the interim Loan with interest within fifteen (15) days after a written demand for payment, then the Performing Member may elect by written notice to the Defaulting Member (a "Dilution Notice") to convert the Interim Loan and all accrued interest thereon to an Additional Capital Contribution and dilute the Profit Ratio of the Defaulting Member. If the performing Member elects to dilute the Profit Ratio of the Defaulting Member, then the Profit Ratio of the Members shall be adjusted so that they are in proportion to their total Additional Capital Contributions to the Company. For purposes of determining the voting tights of the Members, such adjustment shall be effective as of the date that the loan, together with all interest accrued thereon and all costs and expenses associated therewith ("Loan Costs"), is repaid to the Lending Member; (4) all distributions from the Company that otherwise would be made to the Delinquent Member (whether before or after dissolution of the Company) instead Dilution Notice; for purposes of allocating income and loss, such adjustment shall be paid to the Lending Member until the Obligation and any Loan Costs have been paid in full to the Lending Member (with payments being applied first to accrued and unpaid interest, second to Loan Costs, and finally to principal); (5) the payment effective as of the Obligation and Loan Costs is secured by first day of the month immediately following the date of the Dilution Notice. If a security interest in the Delinquent Member's Membership Interest, as more fully set forth in Section 4.06(c); and Defaulting Member does not cure its default within six (6) the Lending Member has 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, without limitation, court proceedings and exercising the rights of a secured party under the Uniform Commercial Code Months of the State of Delaware) that the Lending Member may deem appropriate to obtain payment from the Delinquent Member date of the Obligation Dilution Notice, the reallocation of the Profit Ratio shall be permanent and all Loan Costs. (b) If a Delinquent the Defaulting Member does shall not pay be permitted to subsequently cure the Obligation default and Loan Costs when due, or if no Member is willing to become a Lending restore the prior Profit Ratio without the express prior written consent of the Performing Member, which may be granted or withheld in the Company (by vote of at least a majority discretion of the Percentage Interest remaining after excluding the Percentage Interest of the Delinquent Performing Member) may exercise, on written notice to such Delinquent Member, one or more of the following remedies: (i) taking such action (including, without limitation, court proceedings) as the Company may deem appropriate to obtain payment by the Delinquent Member of the portion of the Delinquent Member's capital contribution that is in default, along with the costs and expenses associated with the collection of such Delinquent Member's capital contribution; (ii) exercising any other rights and remedies available at law or in equity; or (iii) the other Members (by affirmative vote of at least a majority of the Membership Interest held by such other Members) may elect to make any such unpaid capital contributions to the Company and adjust the Percentage Interest for each Member to equal the percentage obtained by dividing (A) the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by such Member (including any capital contributions made by such Member under this Section), plus such Member's pro-rata share of the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to such Member by (B) three times the Target Amount, plus all pro-rata capital contributions (as described in Section 4.02 of this LLC Agreement) by the Members (including any capital contributions made by the Members under this Section), plus the Company's earnings before interest, income taxes, depreciation and amortization (calculated as of the end of the most recent month), less all pro-rata distributions (as described in Section 5.01(a) and the pro-rata distribution portion of Section 5.02(c) of this LLC Agreement) to the Members. This formula shall apply only to such items described in subsections (A) and (B) of this Section 4.06(b)(iii) that have occurred since the Commencement Date. (c) Each Member grants to the Company and to each Lending Member with respect to any Obligation and Loan Costs owed to such Lending Member by that Member as a Delinquent Member pursuant to Section 4.06(a)(i), as security, equally and ratably, a security interest in its Membership Interest and the proceeds thereof, all under the Uniform Commercial Code of the State of Delaware. The security interest secures the payment of all capital contributions such Member has agreed to make and the payment of any Obligation and Loan Costs owed to a Lending Member by such Member as a Delinquent Member pursuant to Section 4.06(a)(i). On any default in the payment of a capital contribution or in the payment of any Obligation or Costs, the Company or the Lending Member, as applicable, is entitled to all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware with respect to the security interest granted in this Section 4.06(c). Each Member shall execute and deliver to the Company and the Lending Member, as applicable, all financing statements and other instruments that the Company or the Lending Member, as applicable, may request to effectuate and carry out the preceding provisions of this Section 4.06(c). At the option of the Company or Lending Member, as applicable, this LLC Agreement or a carbon, photographic, or other copy thereof may serve as a financing statement.