Common use of Distributions in Liquidation Clause in Contracts

Distributions in Liquidation. (a) Upon dissolution of the Partnership and the liquidation of the assets of the Partnership pursuant to this Article 13, the Liquidator shall wind up the affairs of the Partnership and liquidate the Property as promptly as is consistent with obtaining fair value therefor and cause the remaining Property, including proceeds of sales or other dispositions in liquidation of Property, to be applied in accordance with the following priorities: (i) First, to payment of the debts and obligations of the Partnership to its creditors (including to the Partners that are creditors), to the extent otherwise permitted by law, in satisfaction of liabilities of the Partnership (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to Partners and former Partners under Sections 17-601 or 17-604 of the Act; (ii) Second, to the establishment of such reserves as required by Section 17-804(b) of the Act for the purposes as stated therein; (iii) Third, to the Partners having positive Capital Accounts pro rata in accordance with their relative positive Capital Accounts (as determined after taking into account all Capital Account adjustments for the Partnership's Fiscal Year during which such liquidation occurs), until all such positive Capital Accounts are reduced to zero; and (iv) Fifth, among the Partners in proportion to their respective Partnership Interests. The reserves established pursuant to clause (ii) of this Section 13.4(a) shall be paid over by the Liquidator to a bank or other financial institution to be held in escrow for the purpose of paying unliquidated, contingent or unforeseen liabilities or obligations, and, at the expiration of such [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. -35- 41 period as the Liquidator deems advisable, and in compliance with the requirements of the Act, such reserves shall be distributed to the Partners or their assigns in the priority set forth in clauses (iii) and (iv) of this Section 13.4(a). Distributions to the Partners pursuant to this Section 13.4(a) shall be made within the time period prescribed by Regulations Section 1.704-1(b)(2)(ii)(b). (b) In the event the Liquidator determines that an immediate sale of part or all of the Partnership assets would cause undue loss to the Partners, the Liquidator, in order to avoid such loss, may either (i) defer liquidation of any assets of the Partnership for a reasonable time, except those assets necessary to satisfy Partnership debts and obligations, or (ii) distribute the assets in kind to the Partners. If any assets of the Partnership are to be distributed in kind, such assets shall be valued and shall be deemed sold at their fair market value and any gain or loss deemed realized shall be allocated to the Capital Accounts of the Partners for purposes of applying this Section 13.4 as if such gain or loss had actually been fully realized. Any assets that are to be so distributed shall be distributed on the basis of the fair market value thereof and any Partner entitled to an interest in such assets shall receive such interest therein as a tenant-in-common with all other Partners so entitled. The fair market value of such assets shall be determined by an appraiser to be selected by the Liquidator or by agreement of all the Partners. In the event of such distribution in kind, the distributee Partner shall not thereafter sell or otherwise Transfer or dispose of any interest in any assets so distributed which it holds as a tenant-in-common without first offering such interest in writing to the other tenant-in-common upon the same terms and conditions and for the same price as such proposed sale or Transfer. The other tenant-in-common shall have thirty (30) days after the receipt of such offer within which to accept the same and shall have the right to acquire such interest. If the other tenant-in-common shall fail to accept such offer within such period of time, such distributee Partner shall be free to sell the interest in such assets upon the terms and conditions described in the offer disclosed to the other tenants-in-common free of any further rights of first refusal.

Distributions in Liquidation. (a) Upon dissolution of the Partnership and in Liquidation ------------------------------------------------------------------ of a Partner's Interest in the Partnership. ------------------------------------------ (a) In the event of a distribution in connection with the liquidation of the Partnership, the occurrence of which is described in Section 13.4(b), the Partnership shall apply and distribute the proceeds from the liquidation of the assets of the Partnership pursuant to this Article 13, the Liquidator shall wind up the affairs and collection of the Partnership and liquidate receivables of the Property as promptly as is consistent Partnership, together with obtaining fair value therefor and cause the remaining Property, including proceeds of sales or other dispositions assets distributed in liquidation of Propertykind, to be applied the extent sufficient therefor, in accordance with the following prioritiesorder of priority: (i) Firstfirst, to the payment and discharge of the all liabilities, obligations and debts and obligations of the Partnership to its creditors (including to and the Partners that are creditors)expenses of liquidation, to paid in the extent otherwise permitted order then required by California law, in satisfaction of liabilities of the Partnership (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to Partners and former Partners under Sections 17-601 or 17-604 of the Act; (ii) Secondsecond, to the establishment creation and setting up of any reserves which the Management Committee may deem necessary, appropriate or desirable for any future, contingent or unforeseen liabilities, obligations or debts of the Partnership which are not yet payable or have not yet been paid. The Partnership may pay, but is not obligated to pay, such reserves to an independent escrow holder designated by the Management Committee, to be held by it for the purpose of disbursing such reserves in payment of any of the aforementioned liabilities, obligations and debts and, at the expiration of such reserves period as required by Section 17-804(b) of the Act for Management Committee shall deem necessary, advisable or desirable, to distribute the purposes as stated thereinbalance thereafter remaining in the manner hereinafter provided; (iii) Thirdthird, to the Partners having positive Capital Accounts payment and discharge of all of the liabilities, obligations and debts of the Partnership owing to Partners, but if the amount available for payment is insufficient, then pro rata in accordance with their relative the amount of those liabilities, obligations and debts; and (iv) fourth, to the Partners with positive Capital Accounts (as determined Accounts, in accordance with their respective Capital Account after taking into account all Capital Account adjustments for the Partnership's Fiscal Year Partnership taxable year during which such liquidation occurs), until all such positive Capital Accounts are reduced to zero; and occurs (iv) Fifth, among the Partners in proportion to their respective Partnership Interests. The reserves established pursuant to clause (ii) of this Section 13.4(a) shall be paid over by the Liquidator to a bank or other financial institution to be held in escrow for the purpose of paying unliquidated, contingent or unforeseen liabilities or obligations, and, at the expiration of such [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. -35- 41 period as the Liquidator deems advisable, and in compliance with the requirements of the Act, such reserves shall be distributed to the Partners or their assigns in the priority set forth in clauses (iii) and (iv) of this Section 13.4(a). Distributions to the Partners than those made pursuant to this Section 13.4(a) shall be made within the time period prescribed by Regulations 13.2, or Section 1.704-1(b)(2)(ii)(b13.3). (b) In Except as otherwise provided in Regulation Section 1.704- 1(b)(2)(ii)(b), a distribution to a Partner in liquidation of such Partner's interest in the event the Liquidator determines that an immediate sale of part or all Partnership (as described in Section 13.4(c), but other than in liquidation of the Partnership assets would cause undue loss (the occurrence of which is described in Section 13.4(b), shall be in an amount equal to each Partner's Capital Account after taking into account all Capital Account adjustments for the PartnersPartnership taxable year during which such liquidation occurs (other than those made pursuant to this Section 13.2 or Section 13.3). (c) For purposes of this Section 13.2, the Liquidator, in order to avoid such loss, may either (i) defer liquidation of any assets of the Partnership for a reasonable time, except those assets necessary to satisfy Partnership debts and obligations, or (ii) distribute the assets in kind to the Partners. If any assets of the Partnership are to be distributed in kind, such assets shall be valued and shall be deemed sold at their fair market value and any gain or loss deemed realized shall be allocated to the Capital Accounts of the Partners for purposes of applying this Section 13.4 as if such gain or loss had actually been fully realized. Any assets that are to be so distributed shall be distributed on the basis of the fair market value thereof and any Partner entitled to an interest in such assets shall receive such interest therein as a tenant-in-common with all other Partners so entitled. The fair market value of such assets taxable year shall be determined by an appraiser without regard to be selected by the Liquidator or by agreement of all the Partners. In the event of such distribution in kind, the distributee Partner shall not thereafter sell or otherwise Transfer or dispose of any interest in any assets so distributed which it holds as a tenant-in-common without first offering such interest in writing to the other tenant-in-common upon the same terms and conditions and for the same price as such proposed sale or Transfer. The other tenant-in-common shall have thirty (30) days after the receipt of such offer within which to accept the same and shall have the right to acquire such interest. If the other tenant-in-common shall fail to accept such offer within such period of time, such distributee Partner shall be free to sell the interest in such assets upon the terms and conditions described in the offer disclosed to the other tenants-in-common free of any further rights of first refusalCode Section 706(c)(2)(A).

Distributions in Liquidation. (a) 14.4.1 Upon dissolution of the Partnership Company and the liquidation of the assets of the Partnership Company pursuant to this Article 1314, the Liquidator shall wind up the affairs of the Partnership Company and liquidate the Property assets as promptly as is consistent with obtaining fair value therefor and cause the remaining Propertyassets of the Company, including proceeds of sales or other dispositions in liquidation of Propertyassets, to be applied in accordance with the following priorities: (i) 14.4.2 First, to payment of the debts and obligations of the Partnership Company to its creditors (including to the Partners that are creditorsother than a Member), including sales commissions and other expenses incident to the extent otherwise permitted by law, in satisfaction of liabilities any sale of the Partnership (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to Partners and former Partners under Sections 17-601 or 17-604 assets of the ActCompany; (ii) 14.4.3 Second, to the establishment of such reserves as required by Section 17-804(b) the Liquidator may deem reasonably necessary for any unliquidated contingent or unforeseen liabilities or obligations of the Act for the purposes as stated thereinCompany; (iii) 14.4.4 Third, to the Partners payment in full of loans (including for this purpose, accrued interest thereon through the date of payment) to the Company by the Members, pro rata, according to the relative amount of such unpaid loans (including for this purpose, accrued interest thereon through the date of payment) and then to the payment in full of any other debts and obligations of the Company to its Members (e.g., under service agreements), pro rata, according to the relative amount of such debts and obligations; 14.4.5 Fourth, to the Members having positive Capital Accounts pro rata in accordance with their relative positive Capital Accounts (as determined after taking into account all Capital Account adjustments for the PartnershipCompany's Fiscal Year during which such liquidation occurs), until all such positive Capital Accounts are reduced to zero; and; (iv) 14.4.6 Fifth, among the Partners Members in proportion to their respective Partnership Membership Interests; and, 14.4.7 Notwithstanding the foregoing provisions of this Section 14.4, upon liquidation of the Company, Company Discoveries shall be the joint property of each Member. Each Member shall have joint and non-exclusive rights to develop or sublicense the Company Discoveries; provided, however, that Techniclone shall have exclusive ownership, development and sublicense rights in the Company Discoveries until Techniclone has received cumulative distributions equal to the Early Termination Preference; and provided further that the OXiGENE Contributed Technology shall be distributed in kind to OXiGENE and the Techniclone Contributed Technology shall be distributed in kind to Techniclone, each at the value set forth in Section 3.1. The reserves established pursuant to clause (ii) of this Section 13.4(a14.4(a) shall be paid over by the Liquidator to a bank or other financial institution to be held in escrow for the purpose of paying unliquidated, contingent or unforeseen liabilities or obligations, and, at the expiration of such [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. -35- 41 period as the Liquidator deems advisable, and in compliance with the requirements of the Act, such reserves shall be distributed to the Partners Members or their assigns in the priority set forth in clauses (iii) and (iv) of this Section 13.4(a14.4(a). Distributions to the Partners Members pursuant to this Section 13.4(a14.4(a) shall be made within the time period prescribed by Regulations Section 1.704-1(b)(2)(ii)(b1 (b)(2)(ii)(b). (b) 14.4.8 In the event the Liquidator determines that an immediate sale of part or all of the Partnership Company assets would cause undue loss to the PartnersMembers, the Liquidator, in order to avoid such loss, may either (i) defer liquidation of any assets of the Partnership Company for a reasonable time, except those assets necessary to satisfy Partnership Company debts and obligations, or (ii) distribute the assets in kind to the PartnersMembers. If any assets of the Partnership Company are to be distributed in kind, such assets shall be valued and shall be deemed sold at their fair market value and any gain or loss deemed realized shall be allocated to the Capital Accounts of the Partners Members for purposes of applying this Section 13.4 14.4 as if such gain or loss had actually been fully realized. Any assets that are to be so distributed shall be distributed on the basis of the fair market value thereof and any Partner Member entitled to an interest in such assets shall receive such interest therein as a tenant-in-common with all other Partners Members so entitled. The fair market value of such assets shall be determined by an appraiser to be selected by the Liquidator or by agreement of all the PartnersMembers. In the event of such distribution in kind, the distributee Partner Member shall not thereafter sell or otherwise Transfer or dispose of any interest in any assets so distributed which it holds as a tenant-in-common without first offering such interest in writing to the other tenant-in-common upon the same terms and conditions and for the same price as such proposed sale or Transfer. The other tenant-in-common shall have thirty (30) days after the receipt of such offer within which to accept the same and shall have the right to acquire such interest. If the other tenant-in-common shall fail to accept such offer within such period of time, such distributee Partner Member shall be free to sell the interest in such assets upon the terms and conditions described in the offer disclosed to the other tenants-in-common free of any further rights of first refusal. 14.4.9 During the period, if any, that Techniclone has exclusive ownership, development and sublicense rights to develop or sublicense the Company Discoveries pursuant to the first proviso of the second sentence of subsection 14.4(a)(vi), Techniclone will (i) promptly pay to OXiGENE, no less often than annually, the Early Termination Remainder, and (ii) provide OXiGENE with quarterly unaudited financial statements and annual audited financial statements.

Distributions in Liquidation. (a) Upon dissolution of the Partnership and in Liquidation ------------------------------------------------------------------ of a Partner's Interest in the Partnership. ------------------------------------------ (a) In the event of a distribution in connection with the liquidation of the Partnership, the occurrence of which is described in Section 13.4(b), the Partnership shall apply and distribute the proceeds from the liquidation of the assets of the Partnership pursuant to this Article 13, the Liquidator shall wind up the affairs and collection of the Partnership and liquidate receivables of the Property as promptly as is consistent Partnership, together with obtaining fair value therefor and cause the remaining Property, including proceeds of sales or other dispositions assets distributed in liquidation of Propertykind, to be applied the extent sufficient therefor, in accordance with the following prioritiesorder of priority: (i) Firstfirst, to the payment and discharge of the all liabilities, obligations and debts and obligations of the Partnership to its creditors (including to and the Partners that are creditors)expenses of liquidation, to paid in the extent otherwise permitted order then required by California law, in satisfaction of liabilities of the Partnership (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to Partners and former Partners under Sections 17-601 or 17-604 of the Act; (ii) Secondsecond, to the establishment creation and setting up of any reserves which the Management Committee may deem necessary, appropriate or desirable for any future, contingent or unforeseen liabilities, obligations or debts of the Partnership which are not yet payable or have not yet been paid. The Partnership may pay, but is not obligated to pay, such reserves to an independent escrow holder designated by the Management Committee, to be held by it for the purpose of disbursing such reserves in payment of any of the aforementioned liabilities, obligations and debts and, at the expiration of such reserves period as required by Section 17-804(b) of the Act for Management Committee shall deem necessary, advisable or desirable, to distribute the purposes as stated thereinbalance thereafter remaining in the manner hereinafter provided; (iii) Thirdthird, to the Partners having positive Capital Accounts payment and discharge of all of the liabilities, obligations and debts of the Partnership owing to Partners, but if the amount available for payment is insufficient, then pro rata in accordance with their relative the amount of those liabilities, obligations and debts; and (iv) fourth, to the Partners with positive Capital Accounts (as determined Accounts, in accordance with their respective Capital Account after taking into account all Capital Account adjustments for the Partnership's Fiscal Year Partnership taxable year during which such liquidation occurs), until all such positive Capital Accounts are reduced to zero; and occurs (iv) Fifth, among the Partners in proportion to their respective Partnership Interests. The reserves established pursuant to clause (ii) of this Section 13.4(a) shall be paid over by the Liquidator to a bank or other financial institution to be held in escrow for the purpose of paying unliquidated, contingent or unforeseen liabilities or obligations, and, at the expiration of such [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. -35- 41 period as the Liquidator deems advisable, and in compliance with the requirements of the Act, such reserves shall be distributed to the Partners or their assigns in the priority set forth in clauses (iii) and (iv) of this Section 13.4(a). Distributions to the Partners than those made pursuant to this Section 13.4(a) shall be made within the time period prescribed by Regulations 13.2, or Section 1.704-1(b)(2)(ii)(b13.3). (b) In Except as otherwise provided in Regulation Section 1.704- 1(b)(2)(ii)(b), a distribution to a Partner in liquidation of such Partner's interest in the event the Liquidator determines that an immediate sale of part or all Partnership (as described in Section 13.4(c)), but other than in liquidation of the Partnership assets would cause undue loss (the occurrence of which is described in Section 13.4(b)), shall be in an amount equal to each Partner's Capital Account after taking into account all Capital Account adjustments for the PartnersPartnership taxable year during which such liquidation occurs (other than those made pursuant to this Section 13.2 or Section 13.3). (c) For purposes of this Section 13.2, the Liquidator, in order to avoid such loss, may either (i) defer liquidation of any assets of the Partnership for a reasonable time, except those assets necessary to satisfy Partnership debts and obligations, or (ii) distribute the assets in kind to the Partners. If any assets of the Partnership are to be distributed in kind, such assets shall be valued and shall be deemed sold at their fair market value and any gain or loss deemed realized shall be allocated to the Capital Accounts of the Partners for purposes of applying this Section 13.4 as if such gain or loss had actually been fully realized. Any assets that are to be so distributed shall be distributed on the basis of the fair market value thereof and any Partner entitled to an interest in such assets shall receive such interest therein as a tenant-in-common with all other Partners so entitled. The fair market value of such assets taxable year shall be determined by an appraiser without regard to be selected by the Liquidator or by agreement of all the Partners. In the event of such distribution in kind, the distributee Partner shall not thereafter sell or otherwise Transfer or dispose of any interest in any assets so distributed which it holds as a tenant-in-common without first offering such interest in writing to the other tenant-in-common upon the same terms and conditions and for the same price as such proposed sale or Transfer. The other tenant-in-common shall have thirty (30) days after the receipt of such offer within which to accept the same and shall have the right to acquire such interest. If the other tenant-in-common shall fail to accept such offer within such period of time, such distributee Partner shall be free to sell the interest in such assets upon the terms and conditions described in the offer disclosed to the other tenants-in-common free of any further rights of first refusalCode Section 706(c)(2)(A).

Distributions in Liquidation. (a) Upon dissolution of the Partnership and in Liquidation ------------------------------------------------------------------ of a Partner's Interest in the Partnership: ------------------------------------------ (a) In the event of a distribution in connection with the liquidation of the Partnership, the occurrence of which is described in Section 13.4(b), the Partnership shall apply and distribute the proceeds from the liquidation of the assets of the Partnership pursuant to this Article 13, the Liquidator shall wind up the affairs and collection of the Partnership and liquidate receivables of the Property as promptly as is consistent Partnership, together with obtaining fair value therefor and cause the remaining Property, including proceeds of sales or other dispositions assets distributed in liquidation of Propertykind, to be applied the extent sufficient therefor, in accordance with the following prioritiesorder of priority: (i) First, to the payment and discharge of the all liabilities, obligations and debts and obligations of the Partnership to its creditors (including to and the Partners that are creditors)expenses of liquidation, to paid in the extent otherwise permitted order then required by California law, in satisfaction of liabilities of the Partnership (whether by payment or the making of reasonable provision for payment thereof) other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to Partners and former Partners under Sections 17-601 or 17-604 of the Act; (ii) Second, to the establishment creation and setting up of any reserves which the Management Committee may deem necessary, appropriate or desirable for any future, contingent or unforeseen liabilities, obligations or debts of the Partnership which are not yet payable or have not yet been paid. The Partnership may pay, but is not obligated to pay, such reserves to an independent escrow holder designated by the Management Committee, to be held by it for the purpose of disbursing such reserves in payment of any of the aforementioned liabilities, obligations and debts and, at the expiration of such reserves period as required by Section 17-804(b) of the Act for Management Committee shall deem necessary, advisable or desirable, to distribute the purposes as stated thereinbalance thereafter remaining in the manner hereinafter provided; (iii) Third, to the Partners having positive Capital Accounts payment and discharge of all of the liabilities, obligations and debts of the Partnership owing to Partners, but if the amount available for payment is insufficient, then pro rata in accordance with their relative the amount of those liabilities, obligations and debts; and (iv) Finally, to the Partners with positive Capital Accounts, in accordance with their respective Capital Accounts (as determined after taking into account all Capital Account adjustments for the Partnership's Fiscal Year Partnership taxable year during which such liquidation occurs), until all such positive Capital Accounts are reduced to zero; and occurs (iv) Fifth, among the Partners in proportion to their respective Partnership Interests. The reserves established pursuant to clause (ii) of this Section 13.4(a) shall be paid over by the Liquidator to a bank or other financial institution to be held in escrow for the purpose of paying unliquidated, contingent or unforeseen liabilities or obligations, and, at the expiration of such [*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. -35- 41 period as the Liquidator deems advisable, and in compliance with the requirements of the Act, such reserves shall be distributed to the Partners or their assigns in the priority set forth in clauses (iii) and (iv) of this Section 13.4(a). Distributions to the Partners than those made pursuant to this Section 13.4(a) shall be made within the time period prescribed by Regulations 13.2, or Section 1.704-1(b)(2)(ii)(b13.3). (b) In Except as otherwise provided in Regulation Section 1.704- 1(b)(2)(ii)(b), a distribution to a Partner in liquidation of such Partner's interest in the event the Liquidator determines that an immediate sale of part or all Partnership (as described in Section 13.4(c)), but other than in liquidation of the Partnership assets would cause undue loss (the occurrence of which is described in Section 13.4(b)), shall be in an amount equal to each Partner's Capital Account after taking into account all Capital Account adjustments for the PartnersPartnership taxable year during which such liquidation occurs (other than those made pursuant to this Section 13.2 or Section 13.3). (c) For purposes of this Section 13.2, the Liquidator, in order to avoid such loss, may either (i) defer liquidation of any assets of the Partnership for a reasonable time, except those assets necessary to satisfy Partnership debts and obligations, or (ii) distribute the assets in kind to the Partners. If any assets of the Partnership are to be distributed in kind, such assets shall be valued and shall be deemed sold at their fair market value and any gain or loss deemed realized shall be allocated to the Capital Accounts of the Partners for purposes of applying this Section 13.4 as if such gain or loss had actually been fully realized. Any assets that are to be so distributed shall be distributed on the basis of the fair market value thereof and any Partner entitled to an interest in such assets shall receive such interest therein as a tenant-in-common with all other Partners so entitled. The fair market value of such assets taxable year shall be determined by an appraiser without regard to be selected by the Liquidator or by agreement of all the Partners. In the event of such distribution in kind, the distributee Partner shall not thereafter sell or otherwise Transfer or dispose of any interest in any assets so distributed which it holds as a tenant-in-common without first offering such interest in writing to the other tenant-in-common upon the same terms and conditions and for the same price as such proposed sale or Transfer. The other tenant-in-common shall have thirty (30) days after the receipt of such offer within which to accept the same and shall have the right to acquire such interest. If the other tenant-in-common shall fail to accept such offer within such period of time, such distributee Partner shall be free to sell the interest in such assets upon the terms and conditions described in the offer disclosed to the other tenants-in-common free of any further rights of first refusalCode Section 706(c)(2)(A).