Common use of Winding Up      A Clause in Contracts

Winding Up      A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Partners. No Partner shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership's business and affairs. The General Partner or, in the event there is no remaining General Partner, any Person elected by a majority in interest of the Limited Partners (the General Partner or such other Person being referred to herein as the "Liquidator"), shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership's liabilities and property and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the General Partner) shall be applied and distributed in the following order: (i) First, to the payment and discharge of all of the Partnership's debts and liabilities to creditors other than the Partners; (ii) Second, to the payment and discharge of all of the Partnership's debts and liabilities to the General Partner and the Gables Trust; (iii) Third, to the payment and discharge of all of the Partnership's debts and liabilities to the other Partners; (iv) Fourth, to the Partners holding Series A Preferred Units, Series B Preferred Units, and Series C Preferred Units, each as a class, with respect to each such class, pro rata, in the ratio which the Series A Liquidation Preference, the Series B Liquidation Preference or the Series C Liquidation Preference, as applicable, bears to each other (each as defined below), and within each such class, pro rata, in proportion to the ratio in which each such Partner holds Series A Preferred Units, Series B Preferred Units, or Series C Preferred Units, as the case may be. The Series A Liquidation Preference shall mean an aggregate amount equal to the aggregate liquidation preference with respect to the Gables Trust Series A Preferred Shares plus any accrued but unpaid dividends with respect to such shares (the "Series A Liquidation Preference"), the Series B Liquidation Preference shall mean an aggregate amount equal to the sum of the portion of each such Series B Preferred Unitholder's remaining Adjusted Capital Account balance attributable thereto, after giving effect to the allocation provisions of Section 6.2, if applicable (the "Series B Liquidation Preference") and the Series C Liquidation Preference shall mean an aggregate amount equal to the aggregate liquidation preference with respect to the Gables Trust Series C Preferred Shares plus any accrued but unpaid dividends with respect to such shares (the "Series C Liquidation Preference"); (v) Fifth, to the Partners holding Series Z Preferred Units, pro rata, in the ratio in which they hold such Units in an amount equal to the liquidation preference with respect to the Gables Trust Series Z Preferred Shares plus any accrued but unpaid dividends with respect to such shares; and (vi) The balance, if any, to the General Partner and Limited Partners in accordance with their remaining Adjusted Capital Account balances, after giving effect to all contributions, distributions, and allocations for all periods. The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13. B. Notwithstanding the provisions of Section 13.2.A hereof which require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership the Liquidator determines that an immediate sale of part or all of the Partnership's assets would be impractical or would cause undue loss to the Partners, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Partners as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2.A hereof, undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Partners, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt. C. In the discretion of the Liquidator, a pro rata portion of the distributions that would otherwise be made to the General Partner and Limited Partners pursuant to this Article 13 may be: (1) distributed to a trust established for the benefit of the General Partner and Limited Partners for the purposes of liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or the General Partner arising out of or in connection with the Partnership. The assets of any such trust shall be distributed to the General Partner and Limited Partners from time to time, in the reasonable discretion of the Liquidator, in the same proportions as the amount distributed to such trust by the Partnership would otherwise have been distributed to the General Partner and Limited Partners pursuant to this Agreement; or (2) withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Partnership, provided that such withheld or escrowed amounts shall be distributed to the General Partner and Limited Partners in the manner and order of priority set forth in Section 13.2.A as soon as practicable. Section 13.3.

Winding Up      A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Partners. No Partner shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership's business and affairs. The General Partner or, in the event there is no remaining General Partner, any Person elected by a majority in interest of the Limited Partners (the General Partner or such other Person being referred to herein as the "Liquidator"), shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership's liabilities and property and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by the General Partner, include shares of stock in the General Partner) shall be applied and distributed in the following order: (i) First, to the payment and discharge of all of the Partnership's debts and liabilities to creditors other than the Partners; (ii) Second, to the payment and discharge of all of the Partnership's debts and liabilities to the General Partner and the Gables Trust; (iii) Third, to the payment and discharge of all of the Partnership's debts and liabilities to the other Partners; (iv) Fourth, to the Partners holding Series A Preferred Units, Series B Preferred Units, Series C Preferred Units and Series C D Preferred Units, each as a class, with respect to each such class, pro rata, in the ratio which the Series A Liquidation Preference, the Series B Liquidation Preference, the Series C Liquidation Preference or the Series C D Liquidation Preference, as applicable, bears to each other (each as defined below), and within each such class, pro rata, in proportion to the ratio in which each such Partner holds Series A Preferred Units, Series B Preferred Units, Series C Preferred Units or Series C D Preferred Units, as the case may be. The Series A Liquidation Preference shall mean an aggregate amount equal to the aggregate liquidation preference with respect to the Gables Trust Series A Preferred Shares plus any accrued but unpaid dividends with respect to such shares (the "Series A Liquidation Preference"), the Series B Liquidation Preference shall mean an aggregate amount equal to the sum of the portion of each such Series B Preferred Unitholder's remaining Adjusted Capital Account balance attributable thereto, after giving effect to the allocation provisions of Section 6.2, if applicable (the "Series B Liquidation Preference") and ), the Series C Liquidation Preference shall mean an aggregate amount equal to the aggregate liquidation preference with respect to the Gables Trust Series C Preferred Shares plus any accrued but unpaid dividends with respect to such shares (the "Series C Liquidation Preference") and the Series D Liquidation Preference shall mean an aggregate amount equal to the aggregate liquidation preference with respect to the Gables Trust Series D Preferred Shares plus any accrued but unpaid dividends with respect to such shares (the "Series D Liquidation Preference"); (v) Fifth, to the Partners holding Series Z Preferred Units, pro rata, in the ratio in which they hold such Units in an amount equal to the liquidation preference with respect to the Gables Trust Series Z Preferred Shares plus any accrued but unpaid dividends with respect to such shares; and (vi) The balance, if any, to the General Partner and Limited Partners in accordance with their remaining Adjusted Capital Account balances, after giving effect to all contributions, distributions, and allocations for all periods. The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13. B. Notwithstanding the provisions of Section 13.2.A hereof which require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership the Liquidator determines that an immediate sale of part or all of the Partnership's assets would be impractical or would cause undue loss to the Partners, the Liquidator may, in its sole and absolute discretion, defer for a reasonable time the liquidation of any assets except those necessary to satisfy liabilities of the Partnership (including to those Partners as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2.A hereof, undivided interests in such Partnership assets as the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the Liquidator, such distributions in kind are in the best interest of the Partners, and shall be subject to such conditions relating to the disposition and management of such properties as the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt. C. In the discretion of the Liquidator, a pro rata portion of the distributions that would otherwise be made to the General Partner and Limited Partners pursuant to this Article 13 may be: (1) distributed to a trust established for the benefit of the General Partner and Limited Partners for the purposes of liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any contingent or unforeseen liabilities or obligations of the Partnership or the General Partner arising out of or in connection with the Partnership. The assets of any such trust shall be distributed to the General Partner and Limited Partners from time to time, in the reasonable discretion of the Liquidator, in the same proportions as the amount distributed to such trust by the Partnership would otherwise have been distributed to the General Partner and Limited Partners pursuant to this Agreement; or (2) withheld or escrowed to provide a reasonable reserve for Partnership liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Partnership, provided that such withheld or escrowed amounts shall be distributed to the General Partner and Limited Partners in the manner and order of priority set forth in Section 13.2.A as soon as practicable. Section 13.3. Compliance with Timing Requirements of Regulations In the event the Partnership is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article 13 to the General Partner and Limited Partners who have positive Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2). If the General Partner has a deficit balance in his Capital Account (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs), such Partner shall contribute to the capital of the Partnership the amount necessary to restore such deficit balance to zero in compliance with Treasury Regulations Section 1.704-1(b)(2)(ii)(b)(3). If any Limited Partner enters into an agreement with the General Partner to contribute to the capital of the Partnership all or a portion of any deficit balance in its Capital Account at such time as its interest in the Partnership is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) or otherwise, such agreement shall be incorporated herein for all purposes of this Agreement. Section 13.4. Deemed Distribution and Recontribution Notwithstanding any other provision of this Article 13, in the event the Partnership is considered liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but no Liquidating Event has occurred, the Partnership's property shall not be liquidated, the Partnership's liabilities shall not be paid or discharged, and the Partnership's affairs shall not be wound up. Instead, for federal income tax purposes and for purposes of maintaining Capital Accounts pursuant to Exhibit B hereto, the Partnership shall be deemed to have distributed the property in kind to the General Partner and Limited Partners, who shall be deemed to have assumed and taken such property subject to all Partnership liabilities, all in accordance with their respective Capital Accounts. Immediately thereafter, the General Partner and Limited Partners shall be deemed to have recontributed the Partnership property in kind to the Partnership, which shall be deemed to have assumed and taken such property subject to all such liabilities. Section 13.5.