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 ACCRUED AND UNPAID INTEREST AND THEN TO PRINCIPAL AND BEING DEEMED TO
BE A DISTRIBUTION OR PAYMENT (AS MAY APPLY) TO THE DELINQUENT MEMBER, AND, IN
TURN, A PAYMENT BY THE DELINQUENT MEMBER WITH RESPECT TO THE LOAN FROM THE
NON-DELINQUENT MEMBER); AND (E) THE NON-DELINQUENT MEMBER MAY, IN ADDITION TO
THE OTHER RIGHTS GRANTED HEREIN, TAKE SUCH ACTION AS THE NON-DELINQUENT MEMBER
MAY DEEM APPROPRIATE TO OBTAIN PAYMENT OF THE LOAN AT THE EXPENSE OF THE
DELINQUENT MEMBER; OR
(II)
PERMIT THE NON-DELINQUENT MEMBER TO
CONTRIBUTE THAT PORTION OF THE ADDITIONAL CAPITAL CONTRIBUTION THAT IS IN
DEFAULT AS AN ADDITIONAL CAPITAL CONTRIBUTION MADE BY THE NON-DELINQUENT MEMBER,
IN WHICH CASE THE NON-DELINQUENT MEMBER SHALL HAVE ITS COMPANY PERCENTAGE
INCREASED AND THE DELINQUENT MEMBER SHALL HAVE ITS COMPANY PERCENTAGE DECREASED
IN THE FOLLOWING MANNER: (A) THE COMPANY PERCENTAGE OF THE NON-DELINQUENT MEMBER
IMMEDIATELY FOLLOWING SUCH ADDITIONAL CAPITAL CONTRIBUTIONS SHALL BE INCREASED
BY AN AMOUNT EQUAL TO ONE HUNDRED FIFTY PERCENT (150%) X A/B, WHERE 'A' EQUALS
THE AMOUNT THE NON-DELINQUENT MEMBER CONTRIBUTED IN RESPECT OF THE DELINQUENT
MEMBER'S REQUIRED ADDITIONAL CAPITAL CONTRIBUTION, AND 'B' EQUALS THE SUM OF ALL
UNRETURNED CAPITAL CONTRIBUTIONS PREVIOUSLY MADE TO THE COMPANY BY ALL MEMBERS
AFTER GIVING EFFECT TO THE AMOUNTS ADVANCED UNDER THIS SECTION 3.3(B)(II) ON
BEHALF OF THE DELINQUENT MEMBER; AND (B) THE COMPANY PERCENTAGE OF THE
DELINQUENT MEMBER SHALL BE DECREASED BY THE INCREASE OF THE NON-DELINQUENT
MEMBER'S
10
COMPANY PERCENTAGE.
AN EXAMPLE OF THE OPERATION OF THIS SECTION 3.3(B)(II) IS
SET FORTH IN EXHIBIT C ATTACHED HERETO.
(C)
THE EXERCISE BY THE COMPANY OF THE REMEDIES
SET FORTH IN SECTION 3.3(B) ABOVE SHALL BE DETERMINED BY THE NON-DELINQUENT
MEMBERS IN THEIR SOLE DISCRETION AND NOT BY ANY DELINQUENT MEMBER.
(D)
WITH RESPECT TO ANY EFFORTS BY THE BH
INVESTOR TO OBTAIN LOANS TO THE COMPANY FROM A THIRD PARTY OR A MEMBER, THE
FINANCING TERMS MUST BE SUBSTANTIALLY SIMILAR TO (OR MORE FAVORABLE THAN) LOANS
WHICH THE COMPANY COULD OBTAIN ON A COMPETITIVE ARMS-LENGTH BASIS.
IF THE BH
INVESTOR IS UNABLE TO DETERMINE WHETHER THE FINANCING TERMS ARE COMPETITIVE ON
AN ARMS-LENGTH BASIS, THE BH INVESTOR MAY SEEK AND RELY UPON THE ADVICE OF AN
INDEPENDENT EXPERT IN FINANCING.
IF ANY MEMBER MAKES ANY LOAN OR LOANS TO THE
COMPANY OR ADVANCES MONEY ON ITS BEHALF, THE AMOUNT OF ANY LOAN OR ADVANCE SHALL
NOT BE TREATED AS A CAPITAL CONTRIBUTION BUT SHALL BE TREATED AS A DEBT DUE FROM
THE COMPANY TO SUCH MEMBER.
Any Default Loan made by a non-Delinquent Member hereunder may be assigned by
such non-Delinquent Member to an Affiliate of the non-Delinquent Member and such
Affiliate shall have the right to exercise any and all rights granted to the
non-Delinquent Member