Common use of Non-Liquidating Distributions Clause in Contracts

Non-Liquidating Distributions. (a) Non-liquidating distributions shall be made in accordance with the Members’ respective Percentage Interests; provided, however, that, except as provided in Section 3.1(b), no such distribution shall be declared or made without the approval of each Member unless (i) any such declaration or distribution does not and will not result in any breach of any covenant, condition or obligation required to be performed by the Company or the License Company under any material agreement to which it is a party or by which it is bound and (ii) after giving effect to such proposed distribution, the aggregate amount of all distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b)) would be less than fifty percent (50%) of the consolidated net income of the Company (without giving effect to extraordinary gains or extraordinary losses) for the fiscal year immediately preceding the fiscal year in which such distribution is declared or made. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. (b) Notwithstanding the provisions of Section 3.1(a), within thirty (30) days after the end of each fiscal quarter other than the fiscal quarter in which the proceeds from a liquidation are distributed in accordance with Section 3.2, the Company shall make distributions to each Member sufficient to provide such Member with an amount (the “Required Tax Amount”) equal to the estimated amount of all quarterly Federal, state, local and foreign income tax payments that such Member (or its direct and indirect equity owners) would be required to make with respect to such fiscal quarter attributable to the taxable income allocated to (or reasonably estimated to be allocable to) such Member in respect of his, her or its Interest with respect to such fiscal quarter (but in no event more than the net cumulative taxable income allocated to the Member by the Company for such quarter and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by each such Member as to the maximum tax rates applicable in the jurisdictions in which such Member is so taxable and without regard to any net operating loss carryforwards or similar tax attributes of such Member; provided, that the total amount of such distributions shall not exceed the amount of Excess Cash then held by the Company (except that the Manager may, in its discretion, cause the License Company to borrow amounts available for such purpose under the Senior Credit Facility and cause the License Company to distribute such borrowed amounts to the Company, to enable the Company to make tax distributions hereunder); provided, further, that, in the event that the amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter, as estimated by the Manager, exceeds the amount of Excess Cash then held by the Company, such that the aggregate distributions made pursuant to this Section 3.1(b) with respect to such fiscal quarter are less than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter (such shortfall, the “Tax Shortfall Amount”), then the Company shall make one or more distributions in an aggregate amount equal to the Tax Shortfall Amount to the Members at such time as the Company holds sufficient Excess Cash to fund, in whole or in part, such remaining Tax Shortfall Amount (or portion thereof).

Non-Liquidating Distributions. (a) The Company may at any time, other than in connection with a Liquidation Event or Deemed Liquidation Event, and separately from and in addition to the Mandatory Quarterly Distributions and the distributions provided for in Section 3.2(b), declare and pay cash distributions to the Class A Members out of funds legally available for the payment of distributions under Delaware law (“Non- Liquidating Distributions”). The Company shall request wire transfer instructions from each Class A Member as of the relevant Non-liquidating distributions Liquidating Distribution Record Date at least five (5) Business Days prior to the date that the Company sets for the payment of such Non-Liquidating Distributions. Non-Liquidating Distributions shall be made first, to the Class A Members as of the Non-Liquidating Distribution Record Date in respect of any unpaid distributions under this Agreement with respect to their Class A Preferred Interests until all such unpaid distributions have been paid, second, to the Class A Members as of the Non-Liquidating Distribution Record Date in accordance with their Liquidation Preference until the Members’ respective Percentage Interests; providedLiquidation Preference has been paid in full and third, howeverto the Class B Members as of the Non-Liquidating Distribution Record Date in proportion to their Class B Percentages. The Manager shall have the sole and absolute discretion to declare and pay any Non- Liquidating Distributions. For the avoidance of doubt, that, except as provided in Section 3.1(b), no such distribution shall be declared or made without the approval of each Member unless (i) any such declaration or distribution does not and will not result in any breach of any covenant, condition or obligation required to be performed by the Company or the License Company under any material agreement to which it is a party or by which it is bound and (ii) after giving effect to such proposed distribution, the aggregate amount of all distributions Mandatory Quarterly Distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b)) would 3.1 shall be less than fifty percent (50%) of the consolidated net income of the Company (without giving effect to extraordinary gains or extraordinary losses) for the fiscal year immediately preceding the fiscal year in which such distribution is declared or made. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities mandatory and Exchange Commission not subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange ActCompany’s discretion, except that the Manager shall have sole discretion on the method of payment. (b) Notwithstanding the provisions of Section 3.1(a3.2(a), within thirty (30) days after the end of each fiscal quarter other than the fiscal quarter in which the proceeds from a liquidation are distributed in accordance with Section 3.23.3, the Company shall make distributions to each Member in amounts that are at least sufficient to provide such allow each Member with an amount to pay income tax obligations arising from its respective membership interests in the Company (the “Required Tax Amount”), which shall be calculated based on the Assumed Tax Rate. “Assumed Tax Rate” means the highest effective marginal combined U.S. federal, state and local income tax rate for a fiscal year prescribed for an individual or corporate resident in New York, New York (taking into account (a) equal the nondeductibility of expenses subject to the estimated amount limitation described in Section 67(a) and Section 68 of all quarterly Federalthe Code, state(b) the character (e.g., long-term or short- term capital gain or ordinary or exempt income) of the applicable income, and (c) the extent to which state and local and foreign income taxes are deductible for U.S. federal income tax payments purposes). For the avoidance of doubt, the Assumed Tax Rate will be the same for all Members and items of loss or deduction previously allocated to a Member and not taken into account in a manner that reduced tax distributions to such Member (or its direct and indirect equity owners) would shall be required to make with respect to such fiscal quarter attributable to the taxable taken into account in determining a Member’s income allocated to (or reasonably estimated to be allocable to) such Member tax obligations arising from their respective membership interests in respect of his, her or its Interest with respect to such fiscal quarter (but in no event more than the net cumulative taxable income allocated to the Member by the Company for such quarter and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by each such Member as to the maximum tax rates applicable in the jurisdictions in which such Member is so taxable and without regard to any net operating loss carryforwards or similar tax attributes purposes of such Member; provided, that the this provision. The total amount of such tax distributions shall not exceed the amount of Excess Cash then held by the Company (except that the Manager may, in its discretion, cause the License Company to borrow amounts available for such purpose under the Senior Credit Facility and cause the License Company to distribute such borrowed amounts to the Company, to enable the Company to make tax distributions hereunder); provided, further, that, in the event that the amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b3.2(b) for such fiscal quarter, as estimated by the Manager, exceeds the amount of Excess Cash then held by the Company, such that the aggregate distributions made pursuant to this Section 3.1(b3.2(b) with respect to such fiscal quarter are less than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b3.2(b) for such fiscal quarter (such shortfall, the “Tax Shortfall Amount”), then the Company shall make one or more initial tax distributions under this Section 3.2(b) to the members in proportion to their rights to tax distributions and shall make additional tax distributions in an aggregate amount equal to the Tax Shortfall Amount to the Members at such time as the Company holds sufficient Excess Cash to fund, in whole or in part, such remaining Tax Shortfall Amount (or portion thereof). Distributions to a Member under this Section 3.2(b) shall be treated as advances in respect of amounts subsequently distributable to such Member (or a successor to such Member) under Section 3.1, Section 3.2(a), Section 13.3(d)(iii) and Section 13.3(d)(iv) and shall reduce such amounts on a dollar-for-dollar basis.

Non-Liquidating Distributions. (a) The Company may at any time, other than in connection with a Liquidation Event or Deemed Liquidation Event, and separately from and in addition to the Mandatory Quarterly Distributions and the distributions provided for in Section 3.2(b), declare and pay cash distributions to the Class A Members out of funds legally available for the payment of distributions under Delaware law (“Non-liquidating distributions Liquidating Distributions”). The Company shall request wire transfer instructions from each Class A Member as of the relevant Non-Liquidating Distribution Record Date at least five (5) Business Days prior to the date that the Company sets for the payment of such Non-Liquidating Distributions. Non-Liquidating Distributions shall be made first, to the Class A Members as of the Non-Liquidating Distribution Record Date in respect of any unpaid distributions under this Agreement with respect to their Class A Preferred Interests until all such unpaid distributions have been paid, second, to the Class A Members as of the Non-Liquidating Distribution Record Date in accordance with their Liquidation Preference until the Members’ respective Percentage Interests; providedLiquidation Preference has been paid in full and third, howeverto the Class B Members as of the Non-Liquidating Distribution Record Date in proportion to their Class B Percentages. The Manager shall have the sole and absolute discretion to declare and pay any Non-Liquidating Distributions. For the avoidance of doubt, that, except as provided in Section 3.1(b), no such distribution shall be declared or made without the approval of each Member unless (i) any such declaration or distribution does not and will not result in any breach of any covenant, condition or obligation required to be performed by the Company or the License Company under any material agreement to which it is a party or by which it is bound and (ii) after giving effect to such proposed distribution, the aggregate amount of all distributions Mandatory Quarterly Distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b)) would 3.1 shall be less than fifty percent (50%) of the consolidated net income of the Company (without giving effect to extraordinary gains or extraordinary losses) for the fiscal year immediately preceding the fiscal year in which such distribution is declared or made. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities mandatory and Exchange Commission not subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange ActCompany’s discretion, except that the Manager shall have sole discretion on the method of payment. (b) Notwithstanding the provisions of Section 3.1(a3.2(a), within thirty (30) days after the end of each fiscal quarter other than the fiscal quarter in which the proceeds from a liquidation are distributed in accordance with Section 3.23.3, the Company shall make distributions to each Member in amounts that are at least sufficient to provide such allow each Member with an amount to pay income tax obligations arising from its respective membership interests in the Company (the “Required Tax Amount”), which shall be calculated based on the Assumed Tax Rate. “Assumed Tax Rate” means the highest effective marginal combined U.S. federal, state and local income tax rate for a fiscal year prescribed for an individual or corporate resident in New York, New York (taking into account (a) equal the nondeductibility of expenses subject to the estimated amount limitation described in Section 67(a) and Section 68 of all quarterly Federalthe Code, state(b) the character (e.g., long-term or short- term capital gain or ordinary or exempt income) of the applicable income, and (c) the extent to which state and local and foreign income taxes are deductible for U.S. federal income tax payments purposes). For the avoidance of doubt, the Assumed Tax Rate will be the same for all Members and items of loss or deduction previously allocated to a Member and not taken into account in a manner that reduced tax distributions to such Member (or its direct and indirect equity owners) would shall be required to make with respect to such fiscal quarter attributable to the taxable taken into account in determining a Member’s income allocated to (or reasonably estimated to be allocable to) such Member tax obligations arising from their respective membership interests in respect of his, her or its Interest with respect to such fiscal quarter (but in no event more than the net cumulative taxable income allocated to the Member by the Company for such quarter and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by each such Member as to the maximum tax rates applicable in the jurisdictions in which such Member is so taxable and without regard to any net operating loss carryforwards or similar tax attributes purposes of such Member; provided, that the this provision. The total amount of such tax distributions shall not exceed the amount of Excess Cash then held by the Company (except that the Manager may, in its discretion, cause the License Company to borrow amounts available for such purpose under the Senior Credit Facility and cause the License Company to distribute such borrowed amounts to the Company, to enable the Company to make tax distributions hereunder); provided, further, that, in the event that the amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b3.2(b) for such fiscal quarter, as estimated by the Manager, exceeds the *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. amount of Excess Cash then held by the Company, such that the aggregate distributions made pursuant to this Section 3.1(b3.2(b) with respect to such fiscal quarter are less than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b3.2(b) for such fiscal quarter (such shortfall, the “Tax Shortfall Amount”), then the Company shall make one or more initial tax distributions under this Section 3.2(b) to the members in proportion to their rights to tax distributions and shall make additional tax distributions in an aggregate amount equal to the Tax Shortfall Amount to the Members at such time as the Company holds sufficient Excess Cash to fund, in whole or in part, such remaining Tax Shortfall Amount (or portion thereof). Distributions to a Member under this Section 3.2(b) shall be treated as advances in respect of amounts subsequently distributable to such Member (or a successor to such Member) under Section 3.1, Section 3.2(a), Section 13.3(d)(iii) and Section 13.3(d)(iv) and shall reduce such amounts on a dollar-for-dollar basis.

Non-Liquidating Distributions. (a) Non-liquidating The Company may at any time, other than in connection with a Liquidation Event or Deemed Liquidation Event, and separately from and in addition to the Mandatory Quarterly Distributions and the distributions shall be made in accordance with the Members’ respective Percentage Interests; provided, however, that, except as provided for in Section 3.1(b), no declare and pay cash distributions to the Members out of funds legally available for the payment of distributions under Delaware law (“Non-Liquidating Distributions”) in the manner set forth hereinafter. The Company shall request wire transfer instructions from each Class A Member as of the relevant Non-Liquidating Distribution Record Date at least five Business Days prior to the date that the Company sets for the payment of such distribution Non-Liquidating Distributions. Non-Liquidating Distributions shall be declared or made without first, to the approval Class A Members as of each Member unless (i) the Non-Liquidating Distribution Record Date in accordance with their Liquidation Preference until the Liquidation Preference has been paid in full and second, to the Class B Members as of the Non-Liquidating Distribution Record Date in proportion to their Class B Percentages. The Manager shall have the sole and absolute discretion to declare and pay any such declaration or distribution does not and will not result in any breach Non-Liquidating Distributions. For the avoidance of any covenantdoubt, condition or obligation required to be performed by the Company or the License Company under any material agreement to which it is a party or by which it is bound and (ii) after giving effect to such proposed distribution, the aggregate amount of all distributions Mandatory Quarterly Distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b3.0 shall be mandatory and not subject to the Company’s discretion, except that the Manager shall have sole discretion on the method of payment. (b) Notwithstanding the provisions of Section 3.1(a)) would be less , within thirty days after the end of each fiscal quarter other than fifty percent (50%) of the consolidated net fiscal quarter in which the proceeds from a liquidation are distributed in accordance with Section 3.2, the Company shall make distributions to each Member in amounts that are at least sufficient to allow each Member to pay income of tax obligations arising from their respective interests in the Company (without giving effect to extraordinary gains or extraordinary losses) the “Required Tax Amount”), which shall be calculated based on the Assumed Tax Rate. “Assumed Tax Rate” means the highest effective marginal combined U.S. federal, state and local income tax rate for the a fiscal year immediately preceding prescribed for an individual or corporate resident in New York, New York and earning income through a Subchapter S corporation that is fully taxable in New York, New York (and thus such rate shall include the fiscal year in which such distribution is declared or made. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. . New York City corporate-level tax rate on the income of such Subchapter S corporation), (taking into account (a) the nondeductibility of expenses subject to the limitation described in Section 67(a) and Section 68 of the Code and (b) Notwithstanding the provisions character (e.g., long-term or short- term capital gain or ordinary or exempt income) of Section 3.1(athe applicable income, but not taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes)). For the avoidance of doubt, within thirty (30i) days after the end Assumed Tax Rate will be the same for all Members and (ii) items of each fiscal quarter other than the fiscal quarter loss or deduction previously allocated to a Member (or to a predecessor of a Member) and not taken into account in which the proceeds from a liquidation are distributed in accordance with Section 3.2, the Company shall make manner that reduced tax distributions to each Member sufficient to provide such Member with an amount (the “Required Tax Amount”) equal to the estimated amount of all quarterly Federal, state, local and foreign income tax payments that such Member (or its direct and indirect equity owners) would be required to make with respect to such fiscal quarter attributable to the taxable income allocated to (or reasonably estimated to be allocable to) such Member in respect of his, her or its Interest with respect to such fiscal quarter (but in no event more than the net cumulative taxable income allocated to the Member by the Company for such quarter and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by each such Member as to the maximum tax rates applicable in the jurisdictions in which such Member is so taxable and without regard to any net operating loss carryforwards or similar tax attributes predecessor of such Member; provided, ) shall be taken into account in determining a Member’s income tax obligations arising from its Interest for purposes of this Section 3.1(b) such that a Member’s taxable income for the current year for purposes of determining its right to a distribution under this Section 3.1(b) shall be reduced by the amount of any cumulative losses or deductions previously allocated so such Member (or to a predecessor of such Member) which have not been offset by subsequent allocations of income. The total amount of such tax distributions shall not exceed the amount of Excess Cash then held by the Company (except that the Manager may, in its discretion, cause the License Company to borrow amounts available for such purpose under the Senior Credit Facility and cause the License Company to distribute such borrowed amounts to the Company, to enable the Company to make tax distributions hereunder); provided, further, that, in the event that the amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter, as estimated by the Manager, exceeds the amount of Excess Cash then held by the Company, such that the aggregate distributions made pursuant to this Section 3.1(b) with respect to such fiscal quarter are less than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter (such shortfall, the “Tax Shortfall Amount”), then the Company shall make one or more distributions in an aggregate amount equal to the Tax Shortfall Amount to the Class B Members at such time as the Company holds sufficient Excess Cash to fund, in whole or in part, such remaining Tax Shortfall Amount (or portion thereof).

Non-Liquidating Distributions. (a) Non-liquidating The Company may at any time, other than in connection with a Liquidation Event or Deemed Liquidation Event, and separately from and in addition to the Mandatory Quarterly Distributions and the distributions shall be made in accordance with the Members’ respective Percentage Interests; provided, however, that, except as provided for in Section 3.1(b), no declare and pay cash distributions to the Members out of funds legally available for the payment of distributions under Delaware law (“Non-Liquidating Distributions”) in the manner set forth hereinafter. The Company shall request wire transfer instructions from each Class A Member as of the relevant Non-Liquidating Distribution Record Date at least five Business Days prior to the date that the Company sets for the payment of such distribution Non-Liquidating Distributions. Non-Liquidating Distributions shall be declared or made without first, to the approval Class A Members as of each Member unless (i) the Non-Liquidating Distribution Record Date in accordance with their Liquidation Preference until the Liquidation Preference has been paid in full and second, to the Class B Members as of the Non-Liquidating Distribution Record Date in proportion to their Class B Percentages. The Manager shall have the sole and absolute discretion to declare and pay any such declaration or distribution does not and will not result in any breach Non-Liquidating Distributions. For the avoidance of any covenantdoubt, condition or obligation required to be performed by the Company or the License Company under any material agreement to which it is a party or by which it is bound and (ii) after giving effect to such proposed distribution, the aggregate amount of all distributions Mandatory Quarterly Distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b)) would 3.0 shall be less than fifty percent (50%) mandatory and not subject to the Company’s discretion, except that the Manager shall have sole discretion on the method of the consolidated net income of the Company (without giving effect to extraordinary gains or extraordinary losses) for the fiscal year immediately preceding the fiscal year in which such distribution is declared or madepayment. *** Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. (b) Notwithstanding the provisions of Section 3.1(a), within thirty (30) days after the end of each fiscal quarter other than the fiscal quarter in which the proceeds from a liquidation are distributed in accordance with Section 3.2, the Company shall make distributions to each Member in amounts that are at least sufficient to provide such allow each Member with an amount to pay income tax obligations arising from its respective interests in the Company (the “Required Tax Amount”), which shall be calculated based on the Assumed Tax Rate. “Assumed Tax Rate” means the highest effective marginal combined U.S. federal, state and local income tax rate for a fiscal year prescribed for an individual or corporate resident in New York, New York and earning income through a Subchapter S corporation that is fully taxable in New York, New York (and thus such rate shall include the New York City corporate-level tax rate on the income of such Subchapter S corporation) equal (taking into account (a) the nondeductibility of expenses subject to the estimated amount limitation described in Section 67(a) and Section 68 of all quarterly Federalthe Code and (b) the character (e.g., statelong-term or short- term capital gain or ordinary or exempt income) of the applicable income, but not taking into account the deductibility of state and local and foreign income taxes for U.S. federal income tax payments purposes). For the avoidance of doubt, (i) the Assumed Tax Rate will be the same for all Members and (ii) items of loss or deduction previously allocated to a Member (or to a predecessor of a Member) and not taken into account in a manner that reduced tax distributions to such Member (or its direct and indirect equity owners) would be required to make with respect to such fiscal quarter attributable to the taxable income allocated to (or reasonably estimated to be allocable to) such Member in respect of his, her or its Interest with respect to such fiscal quarter (but in no event more than the net cumulative taxable income allocated to the Member by the Company for such quarter and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by each such Member as to the maximum tax rates applicable in the jurisdictions in which such Member is so taxable and without regard to any net operating loss carryforwards or similar tax attributes predecessor of such Member; provided, ) shall be taken into account in determining a Member’s income tax obligations arising from its Interest for purposes of this Section 3.1(b) such that a Member’s taxable income for the current year for purposes of determining its right to a distribution under this Section 3.1(b) shall be reduced by the amount of any cumulative losses or deductions previously allocated to such Member (or to a predecessor of such Member) which have not been offset by subsequent allocations of income. The total amount of such tax distributions shall not exceed the amount of Excess Cash then held by the Company (except that the Manager may, in its discretion, cause the License Company to borrow amounts available for such purpose under the Senior Credit Facility and cause the License Company to distribute such borrowed amounts to the Company, to enable the Company to make tax distributions hereunder); provided, further, that, in the event that the amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter, as estimated by the Manager, exceeds the amount of Excess Cash then held by the Company, such that the aggregate distributions made pursuant to this Section 3.1(b) with respect to such fiscal quarter are less than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter (such shortfall, the “Tax Shortfall Amount”), then the Company shall make one or more distributions in an aggregate amount equal to the Tax Shortfall Amount to the Class B Members at such time as the Company holds sufficient Excess Cash to fund, in whole or in part, such remaining Tax Shortfall Amount (or portion thereof).