(or otherwise agree in writing) to
pay with respect to any Guaranty Payments shall, notwithstanding anything to the
contrary herein, be made as follows:
(a) 221B221B221B221B221B221Binitially, in accordance with the allocations under
the Promote Clauses (up to an amount equal to the amount previously distributed
under the Promote Clauses), and
(b) 222B222B222B222B222B222Bthereafter, the balance, if any, of the Guaranty
Payments shall be made by the Members pari passu in accordance with their
Company Percentages.
41
(2) 217B217B217B217B217B217BAny payments made by BREA, whether a Guaranty
Payment to Indemnitee or a payment to the Paying Member for BREA's Liability
Percentage of a Guaranty Payment, shall be deemed to be a contribution by BREA
under this Agreement.
(3) 218B218B218B218B218B218BAny payment made by ESC, whether a Guaranty Payment
to Indemnitee or a payment to the Paying Member for ESC's Liability Percentage
of a Guaranty Payment, shall be deemed to be a contribution by ESC under this
Agreement.
(4) 219B219B219B219B219B219BAny payment made by Columbia, whether a Guaranty
Payment to Indemnitee or a payment to the Paying Member for Columbia's Liability
Percentage of a Guaranty Payment, shall be deemed to be a contribution by
Columbia under this Agreement.
(5) 220B220B220B220B220B220BThe Company shall be deemed to have made the
Guaranty Payments to the Indemnitee.
Section 11.3. 71B71B71B71B71B71BUUUUAcknowledgement by Members
.UUUU
Each Member acknowledges the following:
(A) it is familiar with the
business proposed to be conducted by the Company and the Company Subsidiaries;
(B) it has been advised that its interest in the Company may not be sold,
transferred, or otherwise disposed of except as provided herein; (C) it
understands that its interest in the Company has not been registered under the
Securities Act of 1933 as amended (the "Securities Act"), or any State
securities laws, in reliance on an exemption for private offerings or the fact
that it is not a security and if its interest in the Company is a security, such
Member may not be able to resell it unless it is registered under the Securities
Act and applicable State securities laws or unless an exemption from such
registration is available; (D) it is a "sophisticated investor" with substantial
prior experience in high-risk business investments of the type described in this
Agreement and is aware of and familiar with the risks associated with a private
limited liability company and would qualify as an "accredited investor" as such
is defined in Rule 501 of Regulation D, as enacted pursuant to Sections 3(b) and
4(2) of the Securities Act; (E) it is acquiring its interest in the Company for
its own account, for investment only and with no present intention of
distributing, reselling, pledging, or otherwise disposing of its interest; and
(F) that it is familiar with the type of investment which its interest in the
Company constitutes and has reviewed the acquisition of such interest with its
tax and independent legal counsel and investment representatives to the extent
it deems necessary.
Section 11.4. 72B72B72B72B72B72BUUUUREIT
.UUUU
Notwithstanding anything contained herein to the contrary, BREA, may