Hubert Enterprises, Incorporated, Successor By Merger To Hubert Holding Company - Page 10




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          payments on the recourse notes.  Petitioner asserts that Wyo.               
          Stat. Ann. sec. 17-15-121(a) and (c) allows a member of a limited           
          liability company to promise to contribute additional capital to            
          the company and permits a creditor of the company to enforce that           
          promise in order to receive payment on a debt owed to the                   
          creditor by the company.                                                    
               As discussed in detail below, we disagree with petitioner’s            
          argument and assertion as applied to the facts at hand.  First,             
          from a factual point of view, HBW did not through the DRO make an           
          unconditional promise to contribute additional capital to LCL.              
          To the contrary, the DRO requires that HBW contribute additional            
          capital to LCL only if:  (1) HBW liquidates its interest in LCL             
          and (2) then has a deficit in its capital account.  For this                
          purpose, as discussed further below, LCL’s recourse creditor has            
          no right to force HBW to liquidate its interest in LCL to cause             
          an additional contribution under the DRO.  Hence, HBW’s personal            
          liability for repayment of LCL’s recourse debt is neither fixed             
          nor definite but is generally contingent on HBW voluntarily                 
          causing a liquidation of its interest in LCL.  Even then, HBW’s             
          contribution of additional capital is required under the DRO only           
          if HBW then has a deficit capital account.  Second, even if both            
          conditions are met, the DRO does not impose on HBW an obligation            
          to contribute funds in the amount necessary to satisfy its                  
          proportionate share of any unpaid debt owed by LCL; the DRO                 







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