BY SUCH MEMBER AND CONSTITUTE THE VALID AND BINDING OBLIGATION OF SUCH MEMBER
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS; AND (III) IT IS AND SHALL BE DURING
THE TERM IN COMPLIANCE WITH ALL MATERIAL LAWS, STATUTES, RULES OR REGULATIONS
APPLICABLE TO SUCH MEMBER OR ITS ASSETS OR BUSINESS AND IT SHALL NOT BE UNDER
INDICTMENT OR GRAND JURY SUBPOENA WITH RESPECT TO ANY CRIMINAL INVESTIGATION
PURSUANT TO WHICH IT HAS BEEN IDENTIFIED AS A TARGET.
6.5
AVOIDANCE OF PUBLICLY TRADED PARTNERSHIP STATUS.
[A]
EXCEPT TO THE EXTENT OTHERWISE SET FORTH IN A NOTICE PROVIDED TO
THE COMPANY, EACH MEMBER HEREBY REPRESENTS THAT AT LEAST ONE OF THE FOLLOWING
STATEMENTS WITH RESPECT TO SUCH MEMBER IS TRUE AND WILL CONTINUE TO BE TRUE
THROUGHOUT THE PERIOD DURING WHICH SUCH MEMBER HOLDS AN INTEREST:
[I]
SUCH MEMBER IS NOT A PARTNERSHIP, GRANTOR TRUST OR S CORPORATION
FOR FEDERAL INCOME TAX PURPOSES;
[II]
WITH REGARD TO EACH BENEFICIAL OWNER OF SUCH MEMBER, THE
PRINCIPAL PURPOSES FOR THE ESTABLISHMENT AND/OR USE OF SUCH MEMBER DO NOT
INCLUDE AVOIDANCE OF THE ONE HUNDRED (100) PARTNER LIMITATION SET FORTH IN
TREASURY REGULATION SECTION 1.7704-1(H)(1)(II); OR
[III]
WITH REGARD TO EACH BENEFICIAL OWNER OF SUCH MEMBER, NOT MORE
THAN 75 PERCENT OF THE VALUE OF SUCH BENEFICIAL OWNER'S INTEREST IN SUCH MEMBER
IS ATTRIBUTABLE TO SUCH MEMBER'S INTEREST.
20
[B]
IN THE EVENT THAT A MEMBER'S REPRESENTATION PURSUANT TO SECTION
6.5(A) SHALL AT ANY TIME FAIL TO BE TRUE, OR THE INFORMATION SET FORTH IN A
NOTICE PROVIDED BY SUCH MEMBER TO THE COMPANY PURSUANT TO SECTION 6.5(A) SHALL
CHANGE, SUCH MEMBER SHALL PROMPTLY (AND IN ANY EVENT WITHIN 10 DAYS) NOTIFY THE
COMPANY OF SUCH FACT AND SHALL PROMPTLY THEREAFTER DELIVER TO THE COMPANY ANY
INFORMATION REGARDING SUCH MEMBER AND ITS BENEFICIAL OWNERS REASONABLY REQUESTED
BY COUNSEL TO THE COMPANY FOR PURPOSES OF DETERMINING THE NUMBER OF THE
COMPANY'S "PARTNERS" WITHIN THE MEANING OF TREASURY REGULATION SECTION
1.7704-1(H).
[C]
EACH MEMBER ACKNOWLEDGES THAT THE BOARD OF MANAGERS WILL RELY UPON
SUCH MEMBER'S REPRESENTATIONS, NOTICES AND OTHER INFORMATION AS SET FORTH IN
THIS SECTION 6.5 FOR PURPOSES OF DETERMINING WHETHER PROPOSED TRANSFERS OF
INTERESTS MAY CAUSE THE COMPANY TO BE TREATED AS A "PUBLICLY TRADED PARTNERSHIP"
WITHIN THE MEANING OF SECTION 7704 OF THE CODE AND THAT FAILURE BY A MEMBER TO
SATISFY ITS OBLIGATIONS UNDER THIS SECTION 6.5 MAY CAUSE THE COMPANY TO BE
TREATED AS A CORPORATION FOR FEDERAL, STATE OR LOCAL TAX PURPOSES.
6.6
SHARED SERVICES.
MEC SHALL SHARE THE SERVICES OF CERTAIN MEC
PERSONNEL WITH THE COMPANY AS IDENTIFIED AND DESCRIBED ON SCHEDULE 1-1 OF THE
BUSINESS PLAN.
6.7
CDI GUARANTY; MEC GUARANTY.
[A]
CDI HEREBY ABSOLUTELY AND UNCONDITIONALLY GUARANTEES TO THE
COMPANY, MEC AND MEC SUB, THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS, THE
DUE PROMPT AND PUNCTUAL PERFORMANCE OF ALL OBLIGATIONS OF, AND THE PROMPT
PAYMENT WHEN DUE AT ALL TIMES HEREAFTER OF ANY AND ALL AMOUNTS OWED BY, CDI SUB
UNDER THIS AGREEMENT (INCLUDING ANY EXTENSIONS, MODIFICATIONS AND AMENDMENTS
HEREOF)