THE MAKING
OF SUCH INITIAL CAPITAL CONTRIBUTIONS).
3.2
ADDITIONAL SCHEDULED CAPITAL CONTRIBUTIONS.
AFTER THE INITIAL CAPITAL CONTRIBUTIONS ARE MADE, THE PARTIES AGREE THAT
ADDITIONAL FUNDS WILL BE NECESSARY PURSUANT TO THE DEVELOPMENT BUDGET AND THE
PARTIES AGREE THAT EACH PARTY WILL MAKE ADDITIONAL SCHEDULED CAPITAL
CONTRIBUTIONS IN THE AMOUNTS SET FORTH IN THE DEVELOPMENT BUDGET SET FORTH IN
THE HOTEL DEVELOPMENT AGREEMENT.
3.3
ADDITIONAL CAPITAL CONTRIBUTIONS.
(A)
IF AT ANY TIME THE BH INVESTOR DETERMINES
(UP TO AN AGGREGATE AMOUNT OF ONE MILLION DOLLARS ($1,000,000.00) ON A PRO RATA
BASIS ACCORDING TO EACH MEMBER'S COMPANY PERCENTAGE AND PURSUANT TO ONE OR MORE
REQUESTS) OR FOR ANY AMOUNT OVER ONE MILLION DOLLARS ($1,000,000.00) IN THE
9
AGGREGATE THE MEMBERS DETERMINE PURSUANT TO SECTION 4.2 HEREIN THAT THE COMPANY
REQUIRES (OR WILL REQUIRE) ADDITIONAL FUNDS FOR ANY PURPOSE ("CASH NEEDS"), THEN
THE BH INVESTOR SHALL USE REASONABLE EFFORTS TO SECURE THIRD PARTY OR MEMBER
LOANS TO FULFILL SUCH CASH NEEDS.
IF SUCH EFFORTS TO SECURE THIRD PARTY OR
MEMBER LOANS ARE UNSUCCESSFUL, THE BH INVESTOR MAY SEND THE MEMBERS WRITTEN
NOTICE ("ADDITIONAL CAPITAL NOTICE") REQUESTING THAT THE MEMBERS CONTRIBUTE IN
CASH SUCH AMOUNTS AS ARE NECESSARY TO SATISFY SUCH CASH NEEDS AND DESCRIBING THE
PURPOSE FOR WHICH THE FUNDS ARE NEEDED.
IF SO REQUESTED, EACH MEMBER SHALL BE
OBLIGATED TO MAKE AN ADDITIONAL CAPITAL CONTRIBUTION EQUAL TO THE PRODUCT OF ITS
COMPANY PERCENTAGE AND THE AMOUNT OF THE CASH NEEDS.
THE TIME FOR THE PAYMENT
OF ANY ADDITIONAL CAPITAL CONTRIBUTION TO THE COMPANY SHALL BE DETERMINED BY THE
BH INVESTOR, BUT SHALL IN NO EVENT BE LESS THAN TEN (10) DAYS AFTER THE DELIVERY
OF THE ADDITIONAL CAPITAL NOTICE.
(B)
IF A MEMBER FAILS TO TIMELY CONTRIBUTE ALL
OR ANY PORTION OF ANY ADDITIONAL CAPITAL CONTRIBUTION REQUIRED OF SUCH MEMBER,
THEN SUCH MEMBER SHALL BE CONSIDERED A "DELINQUENT MEMBER."
THE COMPANY MAY,
UPON NOTICE TO A DELINQUENT MEMBER, EXERCISE THE FOLLOWING REMEDIES:
(I)
PERMIT THE NON-DELINQUENT MEMBER(S) TO
ADVANCE THAT PORTION OF THE ADDITIONAL CAPITAL CONTRIBUTION THAT IS IN DEFAULT
AS A LOAN (A "DEFAULT LOAN") WITH THE FOLLOWING RESULTS: (A) THE SUM THUS
ADVANCED SHALL CONSTITUTE A LOAN TO THE DELINQUENT MEMBER FOR WHICH THE
DELINQUENT MEMBER WILL PLEDGE ITS INTERESTS IN THE COMPANY AS SECURITY FOR SUCH
LOAN; (B) SUCH LOAN AND ALL ACCRUED UNPAID INTEREST THEREON SHALL BE DUE ON
DEMAND, OR IF NO DEMAND IS MADE, TWELVE (12) MONTHS AFTER SUCH ADVANCE IS MADE;
(C) THE LOAN SHALL BEAR INTEREST AT THE LESSER OF TWELVE PERCENT (12%) PER ANNUM
OR THE HIGHEST RATE PERMITTED BY APPLICABLE LAW, FROM THE DATE MADE UNTIL THE
DATE FULLY REPAID COMPOUNDING MONTHLY; (D) ALL COMPANY DISTRIBUTIONS AND OTHER
PAYMENTS THAT OTHERWISE WOULD BE MADE TO THE DELINQUENT MEMBER (WHETHER BEFORE
OR AFTER DISSOLUTION OF THE COMPANY) UNDER THIS AGREEMENT (INCLUDING THOSE UNDER
ARTICLE 6) SHALL BE PAID TO THE NON-DELINQUENT MEMBER UNTIL THE LOAN AND ALL
INTEREST ACCRUED THEREON IS PAID IN FULL (WITH ALL SUCH PAYMENTS BEING APPLIED
FIRST TO