Common use of Non-Liquidating Distributions Clause in Contracts

Non-Liquidating Distributions. Subject to the Manager’s powers set forth in Section 10 hereof to determine the amount and timing of any distribution, any non-liquidating distributions shall be made to the Members in the following order of priority: al. First, Members holding Series A Preferred Interests shall be entitled to receive, when, as and if declared by the Manager, only out of funds legally available for the making of such distributions, cumulative cash distributions in an amount equal to the Series A Preferred Return with respect to each Series A Preferred Interest, and no more, payable quarterly on the 1st day of February, May, August and November in each year (each, a “Distribution Payment Date”), beginning on November 1, 2013. Notwithstanding any provision hereof, any distribution otherwise payable on a Distribution Payment Date that is not a Business Day may be paid on the next succeeding Business Day with the same force and effect as if paid on such Distribution Payment Date and, if so paid, shall be deemed for all purposes to have been paid on such Distribution Payment Date. Any amount so payable on a Distribution Payment Date shall be payable in arrears with respect to the calendar quarter (or portion thereof) ending on the last day of such calendar quarter preceding such Distribution Payment Date (each such period, a “Distribution Period”), to the Members holding the Series A Preferred Interests on such Distribution Payment Date. Distributions on Series A Preferred Interests shall accrue and be cumulative from September 9, 2013. Any distribution or portion thereof payable on the Series A Preferred Interests in respect of any partial Distribution Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Any distribution that accrues in respect of a Distribution Period but is not declared and paid on the relevant Distribution Payment Date as aforesaid shall cumulate and shall not be payable until such time, if any, as it is declared by the Manager out of legally available funds as aforesaid. No interest or distributions, or sum of money in lieu thereof, shall accrue or be payable in respect of any distribution payments on Series A Preferred Interests that may be in arrears. Holders of Series A Preferred Interests shall not be entitled to any distributions, whether payable in cash, securities or other property, other than distributions (if any) declared and payable on Series A Preferred Interests as specified in this Section 16(a)(1) (subject to the other provisions of the LLC Agreement) unless declared by the Manager. No distribution amount that accrues in respect of any Distribution Period shall be “in arrears” at any time on or prior to the corresponding Distribution Payment Date (or, if such day is not a Business Day, the next succeeding Business Day). Any distribution amount in arrears may be paid on any Business Day, 27 whether or not a Distribution Payment Date, at any time at the election of the Manager, whereupon such amount shall no longer be “in arrears.” am. Second, to the Members holding Common Interests in accordance with their relative Common Percentage Interests.

Non-Liquidating Distributions. Subject (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 Manager’s powers set forth Mandatory Quarterly Distributions and the distributions provided for in Section 10 hereof to determine the amount 3.1(b), declare and timing of any distribution, any non-liquidating pay cash distributions shall be made to the Members in the following order of priority: al. First, Members holding Series A Preferred Interests shall be entitled to receive, when, as and if declared by the Manager, only out of funds legally available for the making 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 distributionsNon-Liquidating Distributions. Non-Liquidating Distributions shall be made first, to the Class A Members as of 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 Non-Liquidating Distributions. For the avoidance of doubt, Mandatory Quarterly Distributions paid pursuant to Section 3.0 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), within thirty 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 allow each Member 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) (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) the character (e.g., long-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 income taxes for U.S. federal income tax 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 to a predecessor of such Member) 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 cash 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 Series A Preferred Return with respect to each Series A Preferred Interest, and no more, payable quarterly on the 1st day of February, May, August and November in each year (each, a “Distribution Payment Date”), beginning on November 1, 2013. Notwithstanding any provision hereof, any distribution otherwise payable on a Distribution Payment Date that is not a Business Day may be paid on the next succeeding Business Day with the same force and effect as if paid on such Distribution Payment Date and, if so paid, shall be deemed for all purposes to have been paid on such Distribution Payment Date. Any amount so payable on a Distribution Payment Date shall be payable in arrears with respect Tax Shortfall Amount to the calendar quarter 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) ending on the last day of such calendar quarter preceding such Distribution Payment Date (each such period, a “Distribution Period”), to the Members holding the Series A Preferred Interests on such Distribution Payment Date. Distributions on Series A Preferred Interests shall accrue and be cumulative from September 9, 2013. Any distribution or portion thereof payable on the Series A Preferred Interests in respect of any partial Distribution Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Any distribution that accrues in respect of a Distribution Period but is not declared and paid on the relevant Distribution Payment Date as aforesaid shall cumulate and shall not be payable until such time, if any, as it is declared by the Manager out of legally available funds as aforesaid. No interest or distributions, or sum of money in lieu thereof, shall accrue or be payable in respect of any distribution payments on Series A Preferred Interests that may be in arrears. Holders of Series A Preferred Interests shall not be entitled to any distributions, whether payable in cash, securities or other property, other than distributions (if any) declared and payable on Series A Preferred Interests as specified in this Section 16(a)(1) (subject to the other provisions of the LLC Agreement) unless declared by the Manager. No distribution amount that accrues in respect of any Distribution Period shall be “in arrears” at any time on or prior to the corresponding Distribution Payment Date (or, if such day is not a Business Day, the next succeeding Business Day). Any distribution amount in arrears may be paid on any Business Day, 27 whether or not a Distribution Payment Date, at any time at the election of the Manager, whereupon such amount shall no longer be “in arrears.” am. Second, to the Members holding Common Interests in accordance with their relative Common Percentage Interests.

Non-Liquidating Distributions. Subject to the Manager’s powers set forth Except as otherwise provided in Section 10 hereof to determine the amount Sections 5 and timing 6 of any distribution, any non-liquidating distributions shall be made to the Members in the following order this Partnership Unit Designation: (a) Holders of priority: al. First, Members holding Series A D Preferred Interests shall be Units are entitled to receive, when, when and as authorized by the General Partner and if declared by the Manager, only Partnership out of funds of the Partnership legally available for the making of such distributionspayment, preferential cumulative cash distributions in an amount at the rate of 5.00% per annum of the $25.00 liquidation preference per Series D Preferred Unit, equal to a fixed annual amount of $1.25 per Series D Preferred Unit; provided, however, that if the Parent fails to redeem or call for redemption all shares of Series D Preferred Stock (defined below) on January 31, 2026, the distribution rate of the Series A D Preferred Return with respect Units will increase by 3.0% per Series D Preferred Unit per annum to 8.0% until such shares of Series D Preferred Stock are redeemed or called for redemption. Distributions on each Unit of Series A D Preferred InterestUnits shall be cumulative from (but excluding) the last day of the Parent’s most recent dividend period for which dividends have been paid by the Parent or, if no dividends have been paid by the Parent, from the date of issuance and no more, shall be payable quarterly monthly in arrears on the 1st fifth day of Februaryeach month, May, August and November in each year (each, a “Distribution Payment Date”), beginning on November 1, 2013. Notwithstanding any provision hereof, any distribution otherwise payable on a Distribution Payment Date that or if such day is not a Business Day may be paid Day, on the next immediately succeeding Business Day or on such other date as designated by the General Partner, with the same force and effect as if paid on such Distribution Payment Date and, if so paid, shall be deemed for all purposes to have been paid on such Distribution Payment Date. Any amount so payable on a Distribution Payment Date shall be payable in arrears with respect to the calendar quarter (or portion thereof) ending on the last day of such calendar quarter preceding such Distribution Payment Date (each such period, a “Distribution Period”), to the Members holding the Series A Preferred Interests on such Distribution Payment Date. Distributions on Series A Preferred Interests shall accrue and be cumulative from September 9, 2013date. Any distribution or portion thereof payable on the Series A D Preferred Interests in respect of Units for any partial Distribution Period distribution period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Any Distributions shall be payable to holders of record as they appear in the records of the Partnership at the close of business on the applicable record date, which shall be the 25th day of the applicable month or such other date designated by the General Partner that is prior to the applicable distribution payment date. (b) No distribution on Series D Preferred Units shall be authorized by the General Partner or declared or paid or set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the General Partner, the Parent or the Partnership, including any agreement relating to the indebtedness of any of them, prohibits such declaration, payment or setting apart for payment or provides that accrues such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. (c) Notwithstanding the foregoing, distributions on Series D Preferred Units shall accrue whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions, whether or not such distributions are declared and whether or not such distributions are prohibited by agreement. Except as set forth in the next sentence, no distributions will be declared or paid or set apart for payment on Preferred Parity Units, OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights or rights upon liquidation of the Partnership, for any period unless full cumulative distributions have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for such payment on Series D Preferred Units for all past distribution periods and the then current distribution period. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon Series D Preferred Units and other Preferred Parity Units, all distributions declared upon Series D Preferred Units and other Preferred Parity Units shall be declared pro rata so that the amount of distributions declared per Series D Preferred Unit and other Preferred Parity Unit shall in all cases bear to each other the same ratio that accumulated distributions per Series D Preferred Unit and other Preferred Parity Unit (which shall not include any accumulation in respect of a Distribution Period but is unpaid distributions for prior distribution periods with respect to any Preferred Parity Units that are not entitled to cumulative distributions) bear to each other. (d) Except as provided in the immediately preceding paragraph, unless full cumulative distributions on Series D Preferred Units have been or contemporaneously are declared and paid on or declared and a sum sufficient for the relevant Distribution Payment Date payment thereof is set apart for payment for all past distribution periods and the then current distribution period, no distributions (other than in OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights or rights upon liquidation of the Partnership) shall be declared or paid or set aside for payment upon any Preferred Parity Units, OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights or rights upon liquidation of the Partnership, nor shall any Preferred Parity Units, OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights or rights upon liquidation of the Partnership be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such Preferred Parity Units, OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights or rights upon liquidation of the Partnership) by the Partnership (except (i) by conversion into or exchange for OP Units or other Partnership Units ranking junior to Series D Preferred Units with respect to distribution rights and rights upon liquidation of the Partnership, (ii) in connection with the redemption, purchase or acquisition of equity securities under incentive, benefit or share purchase plans of the Parent for officers, directors or employees or others performing or providing similar services, or (iii) by other redemption, purchase or acquisition of such equity securities by the Parent for the purpose of preserving the Parent’s ability to qualify to be taxed as aforesaid a REIT). Nothing in this paragraph shall cumulate and be construed to prohibit the Parent from acquiring OP Units pursuant to Section 8.06(b) of the Partnership Agreement. (e) Holders of Series D Preferred Units shall not be payable until entitled to any distribution in excess of full cumulative distributions on Series D Preferred Units as provided above. Any distribution made on Series D Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such time, if any, as it is declared by the Manager out of legally available funds as aforesaidshares which remains payable. No interest or distributionsinterest, or sum of money in lieu thereofof interest, shall accrue or be payable in respect of any distribution payment or payments on Series A D Preferred Interests that Units which may be in arrears. Holders of Series A Preferred Interests shall not be entitled to any distributions. (f) In determining whether a distribution (other than upon voluntary or involuntary liquidation), whether payable in cash, securities redemption or other propertyacquisition of the Partnership Units or otherwise is permitted under Delaware law, other than distributions (if any) declared and payable on Series A Preferred Interests as specified in this Section 16(a)(1) (subject no effect shall be given to the other provisions amounts that would be needed, if the Partnership were to be liquidated at the time of the LLC Agreementdistribution, to satisfy the preferential rights upon distribution of holders of Partnership Units whose preferential rights are superior to those receiving the distribution. (g) unless declared by This Section 4 is intended to provide the Manager. No distribution amount that accrues in respect Holder of any Distribution Period a Series D Preferred Unit with the same entitlement to periodic distributions per Series D Preferred Unit as a holder of a share of 5.00% Series D Cumulative Term Preferred Stock, par value $0.001 per share, of the Parent (“Series D Preferred Stock”) and shall be “in arrears” at any time on or prior to the corresponding Distribution Payment Date (or, if such day is not a Business Day, the next succeeding Business Day). Any distribution amount in arrears may be paid on any Business Day, 27 whether or not a Distribution Payment Date, at any time at the election of the Manager, whereupon such amount shall no longer be “in arrearsinterpreted consistently therewith.” am. Second, to the Members holding Common Interests in accordance with their relative Common Percentage Interests.

Non-Liquidating Distributions. Subject to the Manager’s powers set forth in Section 10 hereof to determine the amount and timing of any distribution, any non-liquidating distributions shall be made to the Members in the following order of priority: al. : (i) First, Members holding Series A Preferred Interests shall be entitled to receive, when, as and if declared by the Manager, only out of funds legally available for the making of such distributions, cumulative cash distributions in an amount equal to the Series A Preferred Return with respect to each Series A Preferred Interest, and no more, payable quarterly on the 1st day of February, May, August and November in each year (each, a “Distribution Payment Date”), beginning on November 1, 2013. Notwithstanding any provision hereof, any distribution otherwise payable on a Distribution Payment Date that is not a Business Day may be paid on the next succeeding Business Day with the same force and effect as if paid on such Distribution Payment Date and, if so paid, shall be deemed for all purposes to have been paid on such Distribution Payment Date. Any amount so payable on a Distribution Payment Date shall be payable in arrears with respect to the calendar quarter (or portion thereof) ending on the last day of such calendar quarter preceding such Distribution Payment Date (each such period, a “Distribution Period”), to the Members holding the Series A Preferred Interests on such Distribution Payment Date. Distributions on Series A Preferred Interests shall accrue and be cumulative from September 9, 2013. Any distribution or portion thereof payable on the Series A Preferred Interests in respect of any partial Distribution Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Any distribution that accrues in respect of a Distribution Period but is not declared and paid on the relevant Distribution Payment Date as aforesaid shall cumulate and shall not be payable until such time, if any, as it is declared by the Manager out of legally available funds as aforesaid. No interest or distributions, or sum of money in lieu thereof, shall accrue or be payable in respect of any distribution payments on Series A Preferred Interests that may be in arrears. Holders of Series A Preferred Interests shall not be entitled to any distributions, whether payable in cash, securities or other property, other than distributions (if any) declared and payable on Series A Preferred Interests as specified in this Section 16(a)(1) (subject to the other provisions of the LLC Agreement) unless declared by the Manager. No distribution amount that accrues in respect of any Distribution Period shall be “in arrears” at any time on or prior to the corresponding Distribution Payment Date (or, if such day is not a Business Day, the next succeeding Business Day). Any distribution amount in arrears may be paid on any Business Day, 27 whether or not a Distribution Payment Date, at any time at the election of the Manager, whereupon such amount shall no longer be “in arrears.” am. ” (ii) Second, to the Members holding Common Interests in accordance with their relative Common Percentage Interests.