Common use of Monetary Defaults Clause in Contracts

Monetary Defaults. (a) If a member commits a Monetary Default, any Non-Defaulting Member at its option, to be exercised by written notice of its election to the Defaulting Member, at any time following the occurrence of such Monetary Default, and provided that the Monetary Default shall be continuing, may, in addition to any other rights or remedies that may be available hereunder or at law or in equity, elect any one of the following rights or remedies: (i) Unless the Non-Defaulting Member shall have required the return of its Capital Contribution pursuant to clause (iii) below, the Non-Defaulting Member may contribute, on its own behalf, the Capital Contribution required of the Defaulting Member and cause the Percentage Interests of the Company to be transferred in the manner set forth in Section 11.4 below as of the date such Capital Contribution is made by such Non-Defaulting Member, and the balance of such Non-Defaulting Member’s Capital Account(s) shall be increased by the actual amount contributed to the Company by such Non-Defaulting Member. (ii) Unless the Non-Defaulting Member has required the return of its Capital Contribution pursuant to clause (iii) below, the Non-Defaulting Member may advance the Capital Contribution required of the Defaulting Member, on behalf of such Defaulting Member, which advance shall constitute a recourse loan (a “Default Loan”) by the Non-Defaulting Member to the Defaulting Member. Any amount advanced to the Company by the Non-Defaulting Member under this clause (ii) shall, for the purposes of maintaining the Members’ Capital Accounts, be deemed a Capital Contribution made by the Defaulting Member in the amount of such advance. Any such Default Loan shall bear interest at the rate, compounded annually, equal to the lesser of (A) the Prime Rate plus five percent (5%), such rate to float with any float in the Prime Rate, or (B) the highest rate permitted by law. Prior to the repayment of such Default Loan in full together with interest, any amount otherwise distributable to the Defaulting Member hereunder, if any, shall be deemed assigned and shall be payable to the Non-Defaulting Member in repayment of the Default Loan, being applied first to interest. If such Default Loan is not repaid, together with interest thereon, within five (5) days from the date of written demand by the Non-Defaulting Member, the Non-Defaulting Member shall be entitled to elect to have such Default Loan treated as a Capital Contribution by the Non-Defaulting Member and to cause the Percentage Interests of the Company to be transferred in the manner set forth in Section 11.4 below as of the date of such election by the delivery of written notice thereof to the Defaulting Member. If such election is made and upon delivery of such notice, the Non-Defaulting Member shall, for purposes of effectuating the transfer of the Defaulting Member’s Percentage Interests and maintaining the Members’ respective Capital Accounts, be treated as having made a Capital Contribution on its own behalf to the capital of the Company, in an amount equal to the sum of (x) the then outstanding principal balance of such Default Loan, plus (y) accrued but unpaid interest on such amount at the rate set forth in this Section 11.3(a)(ii) from the date of the original advance through the date of the Non-Defaulting Member’s election to convert its Default Loan into a Capital Contribution, and the Defaulting Member’s Capital Contribution shall be reduced, and its Capital Account balance shall be reduced by the same amount. (iii) The Non-Defaulting Member may, but shall not be obligated to, require that all or any portion of the Capital Contribution advanced to the Company by such Member pursuant to Article III in connection with the capital call that resulted in the Defaulting Member’s Monetary Default be returned to the Non-Defaulting Member (with a corresponding debit to such Member’s Capital Account). To the extent that the Non-Defaulting Member has required the return of its Capital Contribution by the Company as provided above, the Non-Defaulting Member may not exercise its remedies under clauses (i) or (ii) of this Section 11.3(a), unless prior to such exercise the Non-Defaulting Member shall have recontributed its Capital Contribution to the Company. (b) If a Member commits a Monetary Default, the Non-Defaulting Member shall have the right to seek from the Defaulting Member repayment of such Default Loan or payment of the Capital Contribution by all appropriate judicial and/or non-judicial proceedings, until such time as the Default has been cured, or the Members’ Percentage Interests have been modified due to a transfer under Section 11.4; provided, however, that in the event of a transfer of the Percentage Interest of one Member to another Member, the Non-Defaulting Member shall have the right to purchase the remaining Membership Interest of the Defaulting Member as provided in Section 10.2. (c) All Members agree that the prompt making of all Capital Contributions required under Article III when due is necessary to the success of the Company and that a Default by any Member in making any of its required Capital Contributions when due shall expose the Company and the Non-Defaulting Member to significant risks of delay, lost profits, additional risks, expenses and other damages that are, in the view of the Members, impossible to determine in advance and would, at the time of any such Default, be extremely difficult to calculate, and agree that the right to acquire Percentage Interests pursuant to Section 11.4 and the other remedies in this Article XI are reasonable and appropriate remedies.

Monetary Defaults. (a) If a member commits a Monetary Default, any Non-Defaulting Member at its option, to be exercised by written notice of its election to the Defaulting Member, at any time following the occurrence of such Monetary Default, and provided that the Monetary Default shall be continuing, may, in addition to any other rights or remedies that may be available hereunder or at law or in equity, elect any one of the following rights or remedies: (i) Unless the Non-Defaulting Member shall have required the return of its Capital Contribution pursuant to clause (iii) below, the Non-Defaulting Member may contribute, on its own behalf, the Capital Contribution required of the Defaulting Member and cause the Percentage Interests of the Company to be transferred in the manner set forth in Section 11.4 below as of the date such Capital Contribution is made by such Non-Defaulting Member, and the balance of such Non-Defaulting Member’s Capital Account(s) Account shall be increased by the actual amount contributed to the Company by such Non-Defaulting Member. (ii) Unless the Non-Defaulting Member has required the return of its Capital Contribution pursuant to clause (iii) below, the Non-Defaulting Member may advance the Capital Contribution required of the Defaulting Member, on behalf of such Defaulting Member, which advance shall constitute a recourse loan (a “Default Loan”) by the Non-Defaulting Member to the Defaulting Member. Any amount advanced to the Company by the Non-Defaulting Member under this clause (ii) shall, for the purposes of maintaining the Members’ Capital Accounts, be deemed a Capital Contribution made by the Defaulting Member in the amount of such advance. Any such Default Loan shall bear interest at the rate, compounded annually, equal to the lesser of (A) the Prime Rate plus five percent (5%), such rate to float with any float in the Prime Rate, or (B) the highest rate permitted by law. Prior to the repayment of such Default Loan in full together with interest, any amount otherwise distributable to the Defaulting Member hereunder, if any, shall be deemed assigned and shall be payable to the Non-Defaulting Member in repayment of the Default Loan, being applied first to interest. If such Default Loan is not repaid, together with interest thereon, within five (5) days from the date of written demand by the Non-Defaulting Member, the Non-Defaulting Member shall be entitled to elect to have such Default Loan treated as a Capital Contribution by the Non-Defaulting Member and to cause the Percentage Interests of the Company to be transferred in the manner set forth in Section 11.4 below as of the date of such election by the delivery of written notice thereof to the Defaulting Member. If such election is made and upon delivery of such notice, the Non-Defaulting Member shall, for purposes of effectuating the transfer of the Defaulting Member’s Percentage Interests and maintaining the Members’ respective Capital Accounts, be treated as having made a Capital Contribution on its own behalf to the capital of the Company, in an amount equal to the sum of (x) the then outstanding principal balance of such Default Loan, plus (y) accrued but unpaid interest on such amount at the rate set forth in this Section 11.3(a)(ii) from the date of the original advance through the date of the Non-Defaulting Member’s election to convert its Default Loan into a Capital Contribution, and the Defaulting Member’s Capital Contribution shall be reduced, and its Capital Account balance shall be reduced by the same amount. (iii) The Non-Defaulting Member may, but shall not be obligated to, require that all or any portion of the Capital Contribution advanced to the Company by such Member pursuant to Article III in connection with the capital call that resulted in the Defaulting Member’s Monetary Default be returned to the Non-Defaulting Member (with a corresponding debit to such Member’s Capital Account). To the extent that the Non-Defaulting Member has required the return of its Capital Contribution by the Company as provided above, the Non-Defaulting Member may not exercise its remedies under clauses (i) or (ii) of this Section 11.3(a), unless prior to such exercise the Non-Defaulting Member shall have recontributed its Capital Contribution to the Company. (b) If a Member commits a Monetary Default, the Non-Defaulting Member shall have the right to seek from the Defaulting Member repayment of such Default Loan or payment of the Capital Contribution by all appropriate judicial and/or non-judicial proceedings, until such time as the Default has been cured, or the Members’ Percentage Interests have been modified due to a transfer under Section 11.4; provided, however, that in the event of a transfer of the Percentage Interest of one Member to another Member, the Non-Defaulting Member shall have the right to purchase the remaining Membership Interest of the Defaulting Member as provided in Section 10.2. (c) All Members agree that the prompt making of all Capital Contributions required under Article III when due is necessary to the success of the Company and that a Default by any Member in making any of its required Capital Contributions when due shall expose the Company and the Non-Defaulting Member to significant risks of delay, lost profits, additional risks, expenses and other damages that are, in the view of the Members, impossible to determine in advance and would, at the time of any such Default, be extremely difficult to calculate, and agree that the right to acquire Percentage Interests pursuant to Section 11.4 and the other remedies in this Article XI are reasonable and appropriate remedies.