Common use of Non-Liquidating Distributions Clause in Contracts

Non-Liquidating Distributions. (a) Except for the payment of the Put Price pursuant to Article 8, 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. (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 *** 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. 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) Except for the payment of the Put Price pursuant Subject to Article 8Section 5.5, non-liquidating distributions of Distributable Cash shall be made in accordance with no less frequently than once each fiscal quarter to the Members’ respective Percentage Interests; provided, however, that, except Members based on the source of the applicable funds as provided in Section 3.1(b), no such distribution shall be declared or made without the approval of each Member unless follows: (i) any such declaration or distribution does not and will not result in any breach An amount equal to the aggregate Undistributed Unit Receipts as of any covenant, condition or obligation required to be performed by the Company or the License Company under any material agreement date with respect to which it is a party or by the Distributable Cash shall have been determined attributable to the ERP Units shall be distributed to the ERP Member and an amount equal to the aggregate Undistributed Unit Receipts as of the date with respect to which it is bound and (ii) after giving effect the Distributable Cash shall have been determined attributable to such proposed distributionthe AVB Units shall be distributed to the AVB Member; provided that, if the aggregate amount of all distributions paid or made in any fiscal year (including distributions pursuant to Section 3.1(b)) would be Distributable Cash as of the date of the applicable distribution is less than fifty percent (50%) the aggregate amount of Undistributed Unit Receipts as of such date, then all 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. (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 *** 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. each such Member Distributable Cash 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 date will be distributed to the Members pursuant in proportion to this Section 3.1(b) for such fiscal quarterthe respective percentages of the aggregate Undistributed Unit Receipts attributable to the ERP Units or the AVB Units, as estimated by the Managercase may be. (ii) If and to the extent that Unit Receipts consist of property other than cash distributed with respect to AVB Units or ERP Units, exceeds then a distribution shall be made, as promptly as practicable after receipt thereof, to the ERP Member in the form of the property distributed with respect to the ERP Units or to the AVB Member in the form of the property distributed with respect to the AVB Units, as the case may be, and shall be valued, for purposes of determining the amount of Excess Distributable Cash then held and Undistributed Unit Receipts, at the fair market value of such property as determined by agreement between the Company, such that Members. (iii) Any Distributable Cash remaining after the aggregate distributions made pursuant to paragraph (i) of this Section 3.1(b) with respect to such fiscal quarter are less than such amount otherwise required to 5.2 on any date shall be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter (such shortfallequitably, after taking into account the “Tax Shortfall Amount”), then source of the Company shall make one or more distributions in an aggregate amount equal to revenue and the Tax Shortfall Amount to relative Capital Contributions of 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)Members.

Non-Liquidating Distributions. (a) Except for the payment of the Put Price pursuant to Article 8, 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 At the time 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 distribution other than distributions pursuant to Section 3.1(b4.2(b) above (each, a “Non-Liquidating Distribution”)) would , such Non-Liquidating Distributions shall be less than fifty percent (50%) made to the holders of the consolidated net income Preferred Units, Common Units and Junior Units in the manner and in the priority set forth in Section 42(b) hereof; provided that if such Non-Liquidating Distribution shall be payable in Preferred Units, Common Units or Junior Units, as applicable, the payments in Preferred Units shall be payable to holders of Preferred Units, the payments in Common Units shall be payable to holders of Common Units, the payments in Class A Junior Units shall be payable to holders of Class A Junior Units and the payments in Class B Junior Units shall be payable to holders of Class B Junior Units; provided further that the amount of any Non-Liquidating Distribution payable with respect to unvested Common Units or unvested Junior Units shall be retained by the Company (without giving effect to extraordinary gains until such units vest. Any Non-Liquidating Distributions otherwise payable upon Common Units or extraordinary losses) for Junior Units that are forfeited shall be retained by the fiscal year immediately preceding the fiscal year in which such distribution is declared or madeCompany. (bii) Notwithstanding At such time as distributions have been made to the provisions holders 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”) Preferred Units equal to the estimated full amount of the Unpaid Yield and Unreturned Preferred Original Cost, such Preferred Units shall be cancelled, cease to be outstanding and all quarterly Federal, state, local rights and foreign income tax payments that such Member (or its direct and indirect equity owners) would be required to make with respect preferences ascribed to such fiscal quarter attributable to Preferred Units, including 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 rights and all preceding quarters), which estimate shall be made by the Manager or a Person designated by the Manager based on information supplied by *** 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. each such Member as to the maximum tax rates applicable preferences contained 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; providedSecurityholders’ Agreement, 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)terminate.

Non-Liquidating Distributions. (a) Except for Distributions other than from the payment proceeds of a Liquidation Event shall have the following order of priority: (i) First, to the Members in proportion to their respective Sharing Percentages, estimated quarterly tax distributions allowing Members sufficient time to make quarterly estimated tax payments, such distributions made in good faith based on (1) reasonable estimates by the Board of the Put Price amount of taxable income attributable to the Profits to be allocated to the Members pursuant to Article 8Section 6.2(a) (without regard to any adjustment or allocations that are specific to any Member, nonincluding under Section 704(c) of the Code), and (2) the highest federal, state and local income tax rate applicable to any of the Members or, for Members who are pass-liquidating distributions through entities for federal income tax purposes, their beneficial owners (the "Tax Distribution Amount) (ii) Then, to the Members in proportion to their respective Sharing Percentages. (b) To the extent that there is taxable income allocable to the Members and the Company has net available cash flow, the Company shall be made in accordance with distribute the Members’ respective Percentage InterestsTax Distribution Amount; provided, however, thatthat such distributions shall not be made, except and Section 6.5 shall be controlling as provided to distributions made, from and after the occurrence of a Liquidation Event. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be obligated to make any distribution under this Section 3.1(b)6.4 to the extent that the making of such distribution would result in a breach of or constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under any agreement or loan documents. (c) Notwithstanding any of the foregoing, 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. (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 *** 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. 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 quarter6.4 unless, as estimated after giving effect thereto, it is determined by the Manager, exceeds Board that the amount assets of Excess Cash then held by the Company will exceed the Company, such that the aggregate 's liabilities. Whenever distributions made pursuant to provided for under this Section 3.1(b) with respect to such fiscal quarter are less Agreement shall be payable in property other than such amount otherwise required to be distributed to the Members pursuant to this Section 3.1(b) for such fiscal quarter (such shortfallcash, the “Tax Shortfall Amount”), then value of such property shall be 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)Fair Market Value.