Common use of Distributions of Available Cash Clause in Contracts

Distributions of Available Cash. Subject to Section 5.2, Available Cash and non-cash property shall be distributed to the Partners solely at such times and in such amounts as the General Partner shall declare, provided that no distributions shall be made to the Partners until such time as the Unsecured Notes have been paid in full. Subject to the foregoing, Sections 5.1(g) and 5.2, Available Cash and, if applicable, other property declared by the General Partner to be available for distribution under this Section 5.1 shall be distributed, if and when determined by the General Partner in its sole discretion, as follows: (i) First, 100% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s First Priority Amount to be reduced to zero), until the First Priority Amount of each holder of Class A Units has been reduced to zero; (ii) Second, (A) 92.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Second Priority Amount to be reduced to zero) and (B) 7.5% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Second Priority Amount of each holder of Class A Units has been reduced to zero; (iii) Third, (A) 90% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Third Priority Amount to be reduced to zero) and (B) 10% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Third Priority Amount of each holder of Class A Units has been reduced to zero; (iv) Fourth, (A) 87.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Fourth Priority Amount to be reduced to zero) and (B) 12.5% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Fourth Priority Amount of each holder of Class A Units has been reduced to zero; and (v) Thereafter, (A) 86% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata in proportion to Class A Sharing Percentage of each holder of Class A Units) and (B) 14% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units; provided, however, that from and after such time as the holders of Class A-I Units have received cash distributions in an amount necessary to cause the Class A Threshold Amount to be reduced to zero, all distributions to the holders of Class A Units pursuant to this Section 5.1(a) shall, notwithstanding the foregoing, be allocated among the holders of Class A Units pro rata in proportion to the Revised Class A Sharing Percentage (and among the holders of Class A-I Units and Class A-II Units pro rata in proportion to the Class A-I Sharing Percentages and Class A-II Sharing Percentages, respectively, of such holders of Class A Units). Notwithstanding the foregoing, no holder of Class B Units subject to a Distribution Threshold shall be entitled to receive any distributions pursuant to clauses (a)(ii) through (v) in respect of any such Class B Unit unless and until each of the Class A Units and Class B Units outstanding on the date such Class B Unit is issued shall have received distributions after such date in the aggregate pursuant to this Section 5.1 or Section 5.2 equal to the Fair Market Value of the Partnership on the date such Class B Unit is issued, and any such withheld distributions shall be retained by the Partnership and may thereafter be distributed to the holders of Units in accordance with this Section 5.1(a) (provided that any such subsequent distribution shall remain subject to the foregoing provision). At any time that distributions are being made pursuant to this Section 5.1(a), such distributions shall be made giving effect to all prior distributions and all prior Capital Contributions.

Distributions of Available Cash. Subject to Section 5.2, Each distribution of Available Cash and non-cash property shall be distributed to the Partners solely at such times and in such amounts as the General Partner shall declare, provided that no distributions hereunder shall be made to the Partners Members as follows and the calculations described in the following clauses shall be made as of the date of each distribution, on a cumulative basis: (a) First, to the Class A Members pro rata in accordance with the number of Class A Units held by each Class A Member until such time as the Unsecured Notes Class A Members have been paid in full. Subject received a cumulative compounded quarterly (to the foregoing, Sections 5.1(gextent not paid on a quarterly basis) and 5.2, Available Cash and, if applicable, other property declared by return of 8.5% on the General Partner to be available for distribution under this Section 5.1 shall be distributed, if and when determined by the General Partner in its sole discretion, as follows: (i) First, 100% Class A Members' Capital Contributions attributable to the holders of Class A Units with respect to their Class A Units (and among the holders without any return of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s First Priority Amount to be reduced to zeroCapital Contributions), until the First Priority Amount of each holder of Class A Units has been reduced to zero; (iib) Second, (A) 92.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units B Members pro rata based on in accordance with the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Second Priority Amount to be reduced to zero) and (B) 7.5% to the holders number of Class B Units pro rata in proportion held by each Class B Member until such time as the Class B Members have received a cumulative compounded quarterly (to the extent not paid on a quarterly basis) return of 15% on the Class B Members' Capital Contribution attributable to the Class B Sharing Percentage Units (without any return of each holder of Class B Units, until the Second Priority Amount of each holder of Class A Units has been reduced to zeroCapital Contributions); (iiic) Third, (A) 90% to pro rata among the holders of Class A Units with respect to their Class A Units (Members and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Third Priority Amount to be reduced to zero) and (B) 10% to the holders of Class B Units pro rata Members in proportion to the Class B Sharing Percentage of each holder of Class B Units, accordance with their respective Capital Contributions until the Third Priority Amount of each holder of Class A Units has been reduced to zero; (iv) Fourth, (A) 87.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Fourth Priority Amount to be reduced to zero) and (B) 12.5% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Fourth Priority Amount of each holder of Class A Units has been reduced to zero; and (v) Thereafter, (A) 86% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata in proportion to Class A Sharing Percentage of each holder of Class A Units) and (B) 14% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units; provided, however, that from and after such time as the holders of Class A-I Units A Members and Class B Members have received cash distributions in an amount necessary a return of their Capital Contributions attributable to cause the Class A Threshold Amount to be reduced to zero, all distributions to the holders of Class A Units pursuant to this Section 5.1(a) shall, notwithstanding the foregoing, be allocated among the holders of Class A Units pro rata in proportion to the Revised Class A Sharing Percentage (and among the holders of Class A-I Units and Class A-II Units pro rata in proportion to the Class A-I Sharing Percentages and Class A-II Sharing Percentages, respectively, of such holders of Class A Units). Notwithstanding the foregoing, no holder of Class B Units subject to a Distribution Threshold shall be entitled to receive any distributions pursuant to clauses (a)(ii) through (v) in respect of any such Class B Unit unless and until each of the Class A Units and Class B Units outstanding on the date Units; and thereafter each such Class B Unit is issued A Member shall no longer be entitled to receive any distributions of Available Cash hereunder, such Class A Units shall no longer be considered outstanding for purposes of this Agreement and each such Class A Member shall cease to be a Member; (d) Fourth, 100% to the Class C Members, collectively, pro rata in accordance with the number of Class C Units held by each Class C Member, until such time as the Class C Members have received distributions after such date in the an aggregate of $12.5 million pursuant to this Section 5.1 or Section 5.2 equal 6.4(d); and (e) Thereafter, (i) 12.5% to the Fair Market Value Class D Members collectively, pro rata in accordance with the number of Class D Units held by each Class D Member, provided that in the event any Class D Units are forfeited and retained by the Company pursuant to Section 6.4(f)(i), 6.4(f)(ii) or 6.4(f)(iii), such percentage will be reduced pro rata based on the number of Class D Units which remain outstanding; and (ii) 87.5% to the Class B Members in proportion to each Class B Member's Residual Share; provided that in the event any Class D Units are forfeited and retained by the Company pursuant to Section 6.4(f)(i), 6.4(f)(ii) or 6.4(f)(iii), such percentage will be increased in proportion to each Class B Member's Residual Share. 39 35 (i) Notwithstanding the provisions of Section 6.4(e) and subject to the provisions of Section 6.4(g), (A) in the event that during the term of the Partnership on Alter Employment Agreement the date employment of Alter is terminated by the Company for Alter Cause or by Alter without Alter Good Reason, the Alter Member shall forfeit 86.9% of its Class D Units and such forfeited Class B Unit is issued, and any such withheld distributions D Units shall be retained by the Partnership Company; (B) in the event that prior to the expiration of the term of the Alter Employment Agreement Alter is offered a New Alter Employment Agreement by the Company but Alter does not execute and deliver to Company such New Alter Employment Agreement with the Company (for any reason other than Alter's death or Disability (as defined in the Alter Employment Agreement) or his prior termination of employment other than by the Company for Alter Cause or by Alter without Alter Good Reason) prior to the later of (x) the expiration of the term of the Alter Employment Agreement or (y) fifteen (15) Business Days after receipt of such New Alter Employment Agreement by Alter, the Alter Member will forfeit 86.9% of its Class D Units and such forfeited Class D Units shall be retained by the Company; and (C) in the event that during the term of the New Alter Employment Agreement the employment of Alter is terminated by the Company for Alter Cause or by Alter without Alter Good Reason, the Alter Member will forfeit the percentage of Class D Units set forth below and such forfeited Class D Units shall be retained by the Company: (1) 43.5% of its Class D Units if such termination occurs prior to the first anniversary of the Renewal Date; (2) 34.8% of its Class D Units if such termination occurs on or after the first anniversary of the Renewal Date and prior to the second anniversary of the Renewal Date; (3) 26.1% of its Class D Units if such termination occurs on or after the second anniversary of the Renewal Date and prior to the third anniversary of the Renewal Date; (4) 17.4% of its Class D Units if such termination occurs on or after the third anniversary of the Renewal Date and prior to the fourth anniversary of the Renewal Date; and (5) 8.7% of its Class D Units if such termination occurs on or after the fourth anniversary of the Renewal Date and prior to the fifth anniversary of the Renewal Date. In the event that prior to the expiration of the term of the Alter Employment Agreement, Alter is not offered a New Alter Employment Agreement by the Company, the Class D Units of the Alter Member shall no longer be subject to forfeiture. (ii) Notwithstanding the provisions of Section 6.4(e), the Class D Units of any Employee Member shall be subject to forfeiture as provided in any Employment Agreement or other written agreement among the Company, the Alter Member and the Employee Member, and any such forfeited Class D Units shall be immediately transferred to the Alter Member, except that any Class D Units that would have been previously forfeited by the Alter Member pursuant to this Section 6.4(f) had the Alter Member owned such Class D Units prior to the date of such forfeiture shall be retained by the Company. (iii) Notwithstanding the provisions of Section 6.4(e), (A) in the event that prior to the fifth anniversary of the Closing Date, the employment of Biedxxxxx xxxh the Company (or its Subsidiary) is terminated by the Company (or its Subsidiary) for Cause or by Biedxxxxx without Good Reason, the Biedxxxxx Xxxber shall forfeit 86.9% of its Class D Units and such forfeited Class D Units shall be retained by the Company; and (B) 40 36 in the event that prior to the fifth anniversary of the Closing Date, Biedxxxxx xx offered the opportunity to continue his employment with the Company (or its Subsidiary) after the fifth anniversary of the Closing Date on the same terms and conditions and with a base salary not less than the base salary paid to Biedxxxxx xxxediately prior to the fifth anniversary of the Closing Date, and the employment of Biedxxxxx xx terminated thereafter (for any reason other than Biedxxxxx'x xxxth or disability or his prior termination of employment other than by the Company for Cause or by Biedxxxxx xxxhout Good Reason), the Biedxxxxx Xxxber will forfeit the percentage of Class D Units set forth below and such forfeited Class D Units shall be retained by the Company: (1) 43.5% of its Class D Units if such termination occurs prior to the sixth anniversary of the Closing Date; (2) 34.8% of its Class D Units if such termination occurs on or after the sixth anniversary of the Closing Date and prior to the seventh anniversary of the Closing Date; (3) 26.1% of its Class D Units if such termination occurs on or after the seventh anniversary of the Closing Date and prior to the eighth anniversary of the Closing Date; (4) 17.4% of its Class D Units if such termination occurs on or after the eighth anniversary of the Closing Date and prior to the ninth anniversary of the Closing Date; and (5) 8.7% of its Class D Units if such termination occurs on or after the ninth anniversary of the Closing Date and prior to the tenth anniversary of the Closing Date. In the event that prior to the fifth anniversary of the Closing Date, Biedxxxxx xx not offered the opportunity to continue his employment with the Company (or its Subsidiary) after the fifth anniversary of the Closing Date on the same terms and conditions and with a base salary not less than the base salary paid to Biedxxxxx xxxediately prior to the fifth anniversary of the Closing Date, the Class D Units of the Biedxxxxx Xxxber shall no longer be subject to forfeiture. (g) As long as Alter remains the Chief Executive Officer, the Alter Member shall assign Class D Units to one or more key employees of the Company or its Subsidiaries (other than Alter, the Biederman Member and the Employee Members), which employees may thereafter or may not have an Employment Agreement (the "Other Employees") as determined by the Alter Member in its sole discretion; provided that the Class D Units assigned to the Other Employees plus the Class D Units held by the Biederman Member and the Employee Members shall equal not less than 28.7% of the total outstanding Class D Units; and provided further that in the event Alter is no longer the Chief Executive Officer, the Alter Member shall no longer have the right to make such assignment and the Company shall have the right to assign such 28.7% of the outstanding Class D Units. Any assignment of any Class D Units to any Other Employee shall automatically terminate (and the right to Class D Units shall be automatically assigned to the Company without any consideration) at the time any such Other Employee to whom such an assignment has been made ceases to be an employee of the Company or its Subsidiary as a result of such Other Employee's termination for Employee Cause by the Company or its Subsidiary or by such Other Employee without Employee Good Reason. Any Class D Units assigned to the Company as described in the immediately preceding sentence may be assigned by the Alter Member to one or more Other Employees as determined by the Alter Member in its sole discretion as long as Alter remains the Chief Executive Officer (and must be so assigned by the Alter Member if the total Class D Units so assigned by the Alter Member to such Other Employees plus the total Class D Units held by the Biedxxxxx Xxxber and the Employee 41 37 Members is less than 28.7% of the total outstanding Class D Units), provided that in the event Alter is no longer the Chief Executive Officer, the Alter Member shall no longer have the right to make such assignment and the Company shall have the right to reassign any Class D Units required to be assigned pursuant to this Section 6.4(g). Persons to whom Class D Units are assigned pursuant to this Section 6.4(g) shall not become Members or receive any rights under this Agreement solely by virtue of such assignment, but Class D Units may be assigned by the Alter Member to key employees who are Members. In the event of the forfeiture of any Class D Units by the Alter Member pursuant to Section 6.4(f), those Class D Units which the Alter Member has assigned to Other Employees pursuant to this Section 6.4(g) shall not be forfeited and the assignment to such Other Employees shall continue until such time as such Other Employee ceases to be an employee of the Company or its Subsidiary as a result of such Other Employee's termination for Employee Cause by the Company or its Subsidiary or by such Other Employee without Employee Good Reason (at which time any such assignment shall automatically terminate and the right to such Class D Units shall be automatically assigned to the Company). (h) Notwithstanding any provision of this Section 6.4, all amounts distributed in connection with a liquidation of the Company or the sale or other disposition of all or substantially all the assets of the Company that leads to a liquidation of the Company will be distributed to the holders of Units Members in accordance with their respective Capital Account balances with respect to the Units held by such Members, as adjusted for all Company operations up to and including the date of such distribution. The parties intend that such final Capital Account balances shall be determined after allocating all income and loss for all purposes taking into account Section 7.4(g)(vi) and making the adjustments to fair market value as described in the definition of Carrying Value. (i) For purposes of determining the distributions under this Section 5.1(a6.4, the Company shall be deemed to have made distributions to each Member in an amount equal to all taxes paid by the Company (or the Company's share of taxes paid by any entity owned, directly or indirectly, in whole or in part, by the Company) (provided that any attributable solely to such subsequent distribution shall remain subject to the foregoing provision). At any time that distributions are being made pursuant to this Section 5.1(a), Member; such distributions shall be deemed made giving effect to all prior on the later of (i) the date upon which the distributions and all prior Capital Contributions.related thereto are made or (ii) the date upon which such taxes are paid. This

Distributions of Available Cash. Subject to Section 5.2, Available Cash and non-cash property shall be distributed to the Partners Members solely at such times and in such amounts as the General Partner Board shall declaredetermine, provided that no and distributions thereof shall be made to the Partners until such time as the Unsecured Notes have been paid in full. Subject to the foregoing, Sections 5.1(g) and 5.2, Available Cash and, if applicable, other property declared by the General Partner to be available for distribution under this Section 5.1 shall be distributed, if and when determined by the General Partner in its sole discretion, as follows: (i) First, 100% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s First Priority Amount to be reduced to zero), until the First Priority Amount of each holder of Class A Units has been reduced to zero; (ii) Second, (A) 92.5[ ]% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Second Priority Amount to be reduced to zero) and (B) 7.5[ ]% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Second Priority Amount of each holder of Class A Units has been reduced to zero; (iii) Third, (A) 90[ ]% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Third Priority Amount to be reduced to zero) and (B) 10[ ]% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Third Priority Amount of each holder of Class A Units has been reduced to zero; (iv) FourthThereafter, (A) 87.5[ ]% to the holders of Class A Units with respect pro rata in proportion to their the Class A Units (and among the holders Percentage of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Fourth Priority Amount to be reduced to zero) Units, and (B) 12.5[ ]% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Fourth Priority Amount of each holder of Class A Units has been reduced to zero; and (v) Thereafter, (A) 86% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata in proportion to Class A Sharing Percentage of each holder of Class A Units) and (B) 14% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units; provided, however, that from and after such time as the holders of Class A-I Units have received cash distributions in an amount necessary to cause the Class A Threshold Amount to be reduced to zero, all distributions to the holders of Class A Units pursuant to this Section 5.1(a) shall, notwithstanding the foregoing, be allocated among the holders of Class A Units pro rata in proportion to the Revised Class A Sharing Percentage (and among the holders of Class A-I Units and Class A-II Units pro rata in proportion to the Class A-I Sharing Percentages and Class A-II Sharing Percentages, respectively, of such holders of Class A Units). Notwithstanding the foregoing, no holder of Class B Units subject to a Distribution Threshold shall be entitled to receive any distributions pursuant to clauses (a)(ii) through (v) in respect of any such Class B Unit unless and until each of the Class A Units and Class B Units outstanding on the date such Class B Unit is issued shall have received distributions after such date in the aggregate pursuant to this Section 5.1 or Section 5.2 equal to the Fair Market Value of the Partnership on the date such Class B Unit is issued, and any such withheld distributions shall be retained by the Partnership and may thereafter be distributed to the holders of Units in accordance with this Section 5.1(a) (provided that any such subsequent distribution shall remain subject to the foregoing provision). At any time that distributions are being made pursuant to this Section 5.1(a), such distributions shall be made giving effect to all prior distributions and all prior Capital Contributions.

Distributions of Available Cash. Subject to Section 5.2, Each distribution of ------------------------------- Available Cash and non-cash property shall be distributed to the Partners solely at such times and in such amounts as the General Partner shall declare, provided that no distributions hereunder shall be made to the Partners Members as follows and the calculations described in the following clauses shall be made as of the date of each distribution, on a cumulative basis: (a) First, to the Class A Members pro rata in accordance with the --- ---- number of Class A Units held by each Class A Member until such time as the Unsecured Notes Class A Members have been paid in full. Subject received a cumulative compounded quarterly (to the foregoing, Sections 5.1(gextent not paid on a quarterly basis) and 5.2, Available Cash and, if applicable, other property declared by return of 8.5% on the General Partner to be available for distribution under this Section 5.1 shall be distributed, if and when determined by the General Partner in its sole discretion, as follows: (i) First, 100% Class A Members' Capital Contributions attributable to the holders of Class A Units with respect to their Class A Units (and among the holders without any return of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s First Priority Amount to be reduced to zeroCapital Contributions), until the First Priority Amount of each holder of Class A Units has been reduced to zero; (iib) Second, (A) 92.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units B Members pro rata based on in accordance with the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Second Priority Amount to be reduced to zero) and (B) 7.5% to the holders --- ---- number of Class B Units pro rata in proportion held by each Class B Member until such time as the Class B Members have received a cumulative compounded quarterly (to the extent not paid on a quarterly basis) return of 15% on the Class B Members' Capital Contribution attributable to the Class B Sharing Percentage Units (without any return of each holder of Class B Units, until the Second Priority Amount of each holder of Class A Units has been reduced to zeroCapital Contributions); (iiic) Third, (A) 90% to pro rata among the holders of Class A Units with respect to their Class A Units (Members and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Third Priority Amount to be reduced to zero) and (B) 10% to the holders of Class B Units pro rata Members in proportion to the Class B Sharing Percentage of each holder of Class B Units, --- ---- accordance with their respective Capital Contributions until the Third Priority Amount of each holder of Class A Units has been reduced to zero; (iv) Fourth, (A) 87.5% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata based on the amount that would be required to be distributed to each holder of Class A Units to cause such holder’s Fourth Priority Amount to be reduced to zero) and (B) 12.5% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units, until the Fourth Priority Amount of each holder of Class A Units has been reduced to zero; and (v) Thereafter, (A) 86% to the holders of Class A Units with respect to their Class A Units (and among the holders of Class A Units pro rata in proportion to Class A Sharing Percentage of each holder of Class A Units) and (B) 14% to the holders of Class B Units pro rata in proportion to the Class B Sharing Percentage of each holder of Class B Units; provided, however, that from and after such time as the holders of Class A-I Units A Members and Class B Members have received cash distributions in an amount necessary a return of their Capital Contributions attributable to cause the Class A Threshold Amount to be reduced to zero, all distributions to the holders of Class A Units pursuant to this Section 5.1(a) shall, notwithstanding the foregoing, be allocated among the holders of Class A Units pro rata in proportion to the Revised Class A Sharing Percentage (and among the holders of Class A-I Units and Class A-II Units pro rata in proportion to the Class A-I Sharing Percentages and Class A-II Sharing Percentages, respectively, of such holders of Class A Units). Notwithstanding the foregoing, no holder of Class B Units subject to a Distribution Threshold shall be entitled to receive any distributions pursuant to clauses (a)(ii) through (v) in respect of any such Class B Unit unless and until each of the Class A Units and Class B Units outstanding on the date Units; and thereafter each such Class B Unit is issued A Member shall no longer be entitled to receive any distributions of Available Cash hereunder, such Class A Units shall no longer be considered outstanding for purposes of this Agreement and each such Class A Member shall cease to be a Member; (d) Fourth, 100% to the Class C Members, collectively, pro rata in --- ---- accordance with the number of Class C Units held by each Class C Member, until such time as the Class C Members have received distributions after such date in the an aggregate of $12.5 million pursuant to this Section 5.1 or Section 5.2 equal 6.4(d); and (e) Thereafter, (i) 12.5% to the Fair Market Value Class D Members collectively, pro --- rata in accordance with the number of Class D Units held by each Class D Member, ---- provided that in the event any Class D Units are forfeited and retained by the -------- Company pursuant to Section 6.4(f)(i), 6.4(f)(ii) or 6.4(f)(iii), such percentage will be reduced pro rata based on the number of Class D Units which --- ---- remain outstanding; and (ii) 87.5% to the Class B Members in proportion to each Class B Member's Residual Share; provided that in the event any Class D Units -------- are forfeited and retained by the Company pursuant to Section 6.4(f)(i), 6.4(f)(ii) or 6.4(f)(iii), such percentage will be increased in proportion to each Class B Member's Residual Share. (i) Notwithstanding the provisions of Section 6.4(e) and subject to the provisions of Section 6.4(g), (A) in the event that during the term of the Partnership on Alter Employment Agreement the date employment of Alter is terminated by the Company for Alter Cause or by Alter without Alter Good Reason, the Alter Member shall forfeit 86.9% of its Class D Units and such forfeited Class B Unit is issued, and any such withheld distributions D Units shall be retained by the Partnership Company; (B) in the event that prior to the expiration of the term of the Alter Employment Agreement Alter is offered a New Alter Employment Agreement by the Company but Alter does not execute and deliver to Company such New Alter Employment Agreement with the Company (for any reason other than Alter's death or Disability (as defined in the Alter Employment Agreement) or his prior termination of employment other than by the Company for Alter Cause or by Alter without Alter Good Reason) prior to the later of (x) the expiration of the term of the Alter Employment Agreement or (y) fifteen (15) Business Days after receipt of such New Alter Employment Agreement by Alter, the Alter Member will forfeit 86.9% of its Class D Units and such forfeited Class D Units shall be retained by the Company; and (C) in the event that during the term of the New Alter Employment Agreement the employment of Alter is terminated by the Company for Alter Cause or by Alter without Alter Good Reason, the Alter Member will forfeit the percentage of Class D Units set forth below and such forfeited Class D Units shall be retained by the Company: (1) 43.5% of its Class D Units if such termination occurs prior to the first anniversary of the Renewal Date; (2) 34.8% of its Class D Units if such termination occurs on or after the first anniversary of the Renewal Date and prior to the second anniversary of the Renewal Date; (3) 26.1% of its Class D Units if such termination occurs on or after the second anniversary of the Renewal Date and prior to the third anniversary of the Renewal Date; (4) 17.4% of its Class D Units if such termination occurs on or after the third anniversary of the Renewal Date and prior to the fourth anniversary of the Renewal Date; and (5) 8.7% of its Class D Units if such termination occurs on or after the fourth anniversary of the Renewal Date and prior to the fifth anniversary of the Renewal Date. In the event that prior to the expiration of the term of the Alter Employment Agreement, Alter is not offered a New Alter Employment Agreement by the Company, the Class D Units of the Alter Member shall no longer be subject to forfeiture. (ii) Notwithstanding the provisions of Section 6.4(e), the Class D Units of any Employee Member shall be subject to forfeiture as provided in any Employment Agreement or other written agreement among the Company, the Alter Member and the Employee Member, and any such forfeited Class D Units shall be immediately transferred to the Alter Member, except that any Class D Units that would have been previously forfeited by the Alter Member pursuant to this Section 6.4(f) had the Alter Member owned such Class D Units prior to the date of such forfeiture shall be retained by the Company. (iii) Notwithstanding the provisions of Section 6.4(e), (A) in the event that prior to the fifth anniversary of the Closing Date, the employment of Xxxxxxxxx with the Company (or its Subsidiary) is terminated by the Company (or its Subsidiary) for Cause or by Xxxxxxxxx without Good Reason, the Xxxxxxxxx Member shall forfeit 86.9% of its Class D Units and such forfeited Class D Units shall be retained by the Company; and (B) in the event that prior to the fifth anniversary of the Closing Date, Xxxxxxxxx is offered the opportunity to continue his employment with the Company (or its Subsidiary) after the fifth anniversary of the Closing Date on the same terms and conditions and with a base salary not less than the base salary paid to Xxxxxxxxx immediately prior to the fifth anniversary of the Closing Date, and the employment of Xxxxxxxxx is terminated thereafter (for any reason other than Xxxxxxxxx'x death or disability or his prior termination of employment other than by the Company for Cause or by Xxxxxxxxx without Good Reason), the Xxxxxxxxx Member will forfeit the percentage of Class D Units set forth below and such forfeited Class D Units shall be retained by the Company: (1) 43.5% of its Class D Units if such termination occurs prior to the sixth anniversary of the Closing Date; (2) 34.8% of its Class D Units if such termination occurs on or after the sixth anniversary of the Closing Date and prior to the seventh anniversary of the Closing Date; (3) 26.1% of its Class D Units if such termination occurs on or after the seventh anniversary of the Closing Date and prior to the eighth anniversary of the Closing Date; (4) 17.4% of its Class D Units if such termination occurs on or after the eighth anniversary of the Closing Date and prior to the ninth anniversary of the Closing Date; and (5) 8.7% of its Class D Units if such termination occurs on or after the ninth anniversary of the Closing Date and prior to the tenth anniversary of the Closing Date. In the event that prior to the fifth anniversary of the Closing Date, Xxxxxxxxx is not offered the opportunity to continue his employment with the Company (or its Subsidiary) after the fifth anniversary of the Closing Date on the same terms and conditions and with a base salary not less than the base salary paid to Xxxxxxxxx immediately prior to the fifth anniversary of the Closing Date, the Class D Units of the Xxxxxxxxx Member shall no longer be subject to forfeiture. (g) As long as Alter remains the Chief Executive Officer, the Alter Member shall assign Class D Units to one or more key employees of the Company or its Subsidiaries (other than Alter, the Biederman Member and the Employee Members), which employees may thereafter or may not have an Employment Agreement (the "Other Employees") as determined by the Alter Member in its sole discretion; --------------- provided that the Class D Units assigned to the Other Employees plus the Class D -------- ---- Units held by the Biederman Member and the Employee Members shall equal not less than 28.7% of the total outstanding Class D Units; and provided further that in -------- ------- the event Alter is no longer the Chief Executive Officer, the Alter Member shall no longer have the right to make such assignment and the Company shall have the right to assign such 28.7% of the outstanding Class D Units. Any assignment of any Class D Units to any Other Employee shall automatically terminate (and the right to Class D Units shall be automatically assigned to the Company without any consideration) at the time any such Other Employee to whom such an assignment has been made ceases to be an employee of the Company or its Subsidiary as a result of such Other Employee's termination for Employee Cause by the Company or its Subsidiary or by such Other Employee without Employee Good Reason. Any Class D Units assigned to the Company as described in the immediately preceding sentence may be assigned by the Alter Member to one or more Other Employees as determined by the Alter Member in its sole discretion as long as Alter remains the Chief Executive Officer (and must be so assigned by the Alter Member if the total Class D Units so assigned by the Alter Member to such Other Employees plus the total Class D ---- Units held by the Xxxxxxxxx Member and the Employee Members is less than 28.7% of the total outstanding Class D Units), provided that in the event Alter is no -------- longer the Chief Executive Officer, the Alter Member shall no longer have the right to make such assignment and the Company shall have the right to reassign any Class D Units required to be assigned pursuant to this Section 6.4(g). Persons to whom Class D Units are assigned pursuant to this Section 6.4(g) shall not become Members or receive any rights under this Agreement solely by virtue of such assignment, but Class D Units may be assigned by the Alter Member to key employees who are Members. In the event of the forfeiture of any Class D Units by the Alter Member pursuant to Section 6.4(f), those Class D Units which the Alter Member has assigned to Other Employees pursuant to this Section 6.4(g) shall not be forfeited and the assignment to such Other Employees shall continue until such time as such Other Employee ceases to be an employee of the Company or its Subsidiary as a result of such Other Employee's termination for Employee Cause by the Company or its Subsidiary or by such Other Employee without Employee Good Reason (at which time any such assignment shall automatically terminate and the right to such Class D Units shall be automatically assigned to the Company). (h) Notwithstanding any provision of this Section 6.4, all amounts distributed in connection with a liquidation of the Company or the sale or other disposition of all or substantially all the assets of the Company that leads to a liquidation of the Company will be distributed to the holders of Units Members in accordance with their respective Capital Account balances with respect to the Units held by such Members, as adjusted for all Company operations up to and including the date of such distribution. The parties intend that such final Capital Account balances shall be determined after allocating all income and loss for all purposes taking into account Section 7.4(g)(vi) and making the adjustments to fair market value as described in the definition of Carrying Value. (i) For purposes of determining the distributions under this Section 5.1(a6.4, the Company shall be deemed to have made distributions to each Member in an amount equal to all taxes paid by the Company (or the Company's share of taxes paid by any entity owned, directly or indirectly, in whole or in part, by the Company) (provided that any attributable solely to such subsequent distribution shall remain subject to the foregoing provision). At any time that distributions are being made pursuant to this Section 5.1(a), Member; such distributions shall be deemed made giving effect to all prior on the later of (i) the date upon which the distributions and all prior Capital Contributions.related thereto are made or (ii) the date upon which such taxes are paid. This