Common use of Initial Capital Commitments Clause in Contracts

Initial Capital Commitments. (a) The Initial Capital Commitment of each Member admitted on the date hereof shall be divided into two tranches (the “Tranche 1 Initial Capital Commitment” and the “Tranche 2 Initial Capital Commitment”), as reflected on Exhibit A. The value of the Contributed Assets as set forth in Exhibit B for the Tranche I Contributed Assets and the Tranche 2 Contributed Assets to be contributed by the XTO Parties in fulfillment of their respective Tranche 1 Initial Capital Commitments and their respective Tranche 2 Initial Capital Commitments is the Agreed Value of those assets. (b) Each Member irrevocably and unconditionally promises to pay (or, in the case of non-cash assets, transfer) to the Company the full amount of its Tranche 1 Initial Capital Commitment and Tranche 2 Initial Capital Commitment as follows: (i) the Tranche 1 Initial Capital Commitments from Morningstar and the XTO Parties shall be fulfilled no later than the Tranche 1 Closing Date; and (ii) the Tranche 2 Initial Capital Commitments from Morningstar and the XTO Parties shall be fulfilled no later than the Tranche 2 Closing Date. (c) Notwithstanding Section 4.l(b)(i), in the event that the Members have taken all reasonable steps to fulfill their respective Tranche 1 Initial Capital Commitments by July 1, 2012 (or such later date if extended by the MMC) but any Party is unable to fulfill its respective Tranche 1 Initial Capital Commitments by such date, either Party upon written notice to the other Party has the right to terminate this Agreement without further obligation to the other Members. (d) Notwithstanding Section 4.l(b)(ii), in the event that the Members have taken all reasonable steps to fulfill their respective Tranche 2 Initial Capital Commitments by January 1, 2013 (or such later date if extended by the MMC) but any Party is unable to fulfill its respective Tranche 2 Initial Capital Commitments by such date, either Party upon written notice to the other Party has the right to withdraw its Tranche 2 Initial Capital Commitment without further obligation to the other Members with respect to its Tranche 2 Initial Capital Commitment. The withdrawal by one Party of its Tranche 2 Initial Capital Commitment under this Section 4.l(d) shall result in the automatic cancellation of the Tranche 2 Initial Capital Commitment of the other Members. Notwithstanding anything herein to the contrary, in the event that Morningstar is not able to fulfill its Tranche 2 Initial Capital Commitment, even as a result of its inability to secure external financing in amounts and on terms reasonably satisfactory to Morningstar, Morningstar shall be obligated to pay directly to XTO Energy an amount equal to ten percent (10%) of the amount of Morningstar’ s Tranche 2 Initial Capital Commitment, such payment to be made within thirty (30) days after the date a Party provides its written notice to withdraw its Tranche 2 Initial Capital Commitment pursuant to this section. (e) The amount contributed by each Member in respect to its Tranche 1 Initial Capital Commitment on or prior to the date hereof shall be reflected on Exhibit A (and treated for all purposes of this Agreement) as a Capital Contribution. The Company shall update Exhibit A as necessary to reflect the Members’ Tranche I Initial Capital Commitment and Tranche 2 Initial Capital Commitment fulfilled after the date hereof. Further, the Company shall update Exhibit A to reflect any Additional Capital Contributions made by the Members. (f) In addition to Morningstar’s Initial Capital Commitment, Morningstar shall contribute an additional $*** of cash to the Company on the Tranche 1 Closing Date. The amount contributed pursuant to this Section 4.l(f) plus the $*** reduction of Financial Account Assets provided for under Section 4.7(a) shall be for the Company’s working capital and shall not be considered Financial Accounts Assets.