Common use of Liquidating Actions Clause in Contracts

Liquidating Actions. The Liquidator will liquidate the assets of ------------------- the Company and apply and Distribute the proceeds of such liquidation, in the following order of priority, unless otherwise required by mandatory provisions of applicable law: (i) First, to the payment of the Company's debts and ----- obligations to its creditors (including Members), including sales commissions and other expenses incident to any sale of the assets of the Company, in order of the priority provided by law; (ii) Second, to the establishment of and additions to such ------ reserves as the Board deems necessary or appropriate; and (iii) Third, to the Members, in accordance with Section 7.1, ----- subject to Section 7.2, or any Certificate of Designation and the final paragraph of this Section 10.2(b). The reserves established pursuant to clause (ii) above will be paid over by the Liquidator to a bank or other financial institution, to be held in escrow for the purpose of paying any such contingent or unforeseen liabilities or obligations and, at the expiration of such period as the Board deems advisable, such reserves will be Distributed to the Members in accordance with Section 7.1, subject to Section 7.2 or any Certificate of Designation. The allocations and Distributions provided for in this Agreement are intended to result in the Capital Account of each Member immediately prior to the Distribution of the Company's assets pursuant to this Section 10.2(b) being equal to the amount Distributable to such Member pursuant to this Section 10.2(b). The Company is authorized to make appropriate adjustments in the allocation of Profits and Losses as necessary to cause the amount of each Member's Capital Account immediately prior to the Distribution of the Company's assets pursuant to this Section 10.2(b) to equal the amount Distributable to such Member pursuant to this Section 10.2(b). In furtherance of the foregoing, and notwithstanding anything in this Agreement or any Certificate of Designation to the contrary, the Class A Units issued to BancAmerica, New York Life and Northwestern (the "Series A Preferred Unitholders") on the date hereof are intended to be the economic equivalents of "profits interests" within the meaning of section 2.02 of Revenue Procedure 93-27, 1993-2 C.B. 343. Allocations of Profits and Losses (including, for the avoidance of doubt, items of gross income and gross deduction) shall be made in such manner as necessary (either with respect to the Fiscal Year of liquidation, or, if the due date for the Company's tax return for the preceding year (without regard to extensions) has not passed (and there are not sufficient items of Profit or Loss in the current year) with respect to such prior year) to yield the result described in the second preceding sentence, and the holders of Class A Units issued pursuant to the Securities Purchase Agreement on the date hereof shall not be entitled to any distribution pursuant to Section 7.1(d) upon a liquidation of the Company unless an amount of Profit has been allocated to such holders pursuant to this sentence equal to the amount to be distributed to them; provided, that the -------- Company shall not make any Distributions under Section 10.2(b)(iii) without the express written consent of the holder(s) of a more than sixty percent of the outstanding Class A Units issued pursuant to the Securities Purchase Agreement on the date hereof unless such Distributions can be made pursuant to Section 7.1(d) on a pro rata per Common Investment Unit basis.

Liquidating Actions. The Liquidator will liquidate the assets of ------------------- the Company and apply and Distribute the proceeds of such liquidation, in the following order of priority, unless otherwise required by mandatory provisions of applicable law: (i) Firstfirst, to the payment in full of the Company's debts and ----- obligations to its creditors (including Company Members), including sales commissions and other expenses incident to any sale of the assets of the Company, ) in order of the priority provided by law; (ii) Secondsecond, to the establishment of and additions to such ------ reserves as the Board of Managers deems reasonably necessary or appropriate; (iii) third, to the payment in full, pro rata to the Class B Preferred Members in accordance with their Class B Preferred Membership Interests, of the aggregate unpaid liquidation value of any outstanding Class B Preferred Membership Interests (including any amounts added to such liquidation value pursuant to Section 2.01 of the Class B Membership Interest Certificates) and any other Distributions required to be made as at the date of payment pursuant to the terms of the Class B Preferred Membership Interest Certificates; and (iiiiv) Thirdfourth, pro rata to the Members, Class A Members in accordance with Section 7.1, ----- subject to Section 7.2, or any Certificate of Designation and the final paragraph of this Section 10.2(b)their Class A Membership Interests. The reserves established pursuant to clause (ii) above will be paid over by the Liquidator to a bank or other financial institution, to be held in escrow for the purpose of paying any such contingent or unforeseen liabilities or obligations and, at the expiration of such period as the Board of Managers deems advisable, such reserves will be Distributed Distributed, first pro rata to the Class B Preferred Members in accordance with Section 7.1their Class B Preferred Membership Interests to fulfill as provided in clause (iii) above (but only to the extent such Class B Preferred Members have not received the full amount to which they are entitled under clause (iii) above) and second pro rata to the Class A Members in accordance with their Class A Membership Interests as provided in clause (iv) above. For the avoidance of doubt, subject to Section 7.2 or any Certificate of Designation. The the allocations and Distributions provided for in this Agreement are intended to result in the Capital Account of each Company Member immediately prior to the Distribution of the Company's assets pursuant to this Section 10.2(b10.03(b) being equal to the amount Distributable to which such Company Member pursuant to this Section 10.2(b). The Company is authorized to make appropriate adjustments in the allocation of Profits and Losses as necessary to cause the amount of each Member's Capital Account immediately prior to the Distribution of the Company's assets pursuant to this Section 10.2(b) to equal the amount Distributable to such Member pursuant to this Section 10.2(b). In furtherance of the foregoing, and notwithstanding anything in this Agreement or any Certificate of Designation to the contrary, the Class A Units issued to BancAmerica, New York Life and Northwestern (the "Series A Preferred Unitholders") on the date hereof are intended to be the economic equivalents of "profits interests" within the meaning of section 2.02 of Revenue Procedure 93-27, 1993-2 C.B. 343. Allocations of Profits and Losses (including, for the avoidance of doubt, items of gross income and gross deduction) shall be made in such manner as necessary (either with respect to the Fiscal Year of liquidation, or, if the due date for the Company's tax return for the preceding year (without regard to extensions) has not passed (and there are not sufficient items of Profit or Loss in the current year) with respect to such prior year) to yield the result described in the second preceding sentence, and the holders of Class A Units issued pursuant to the Securities Purchase Agreement on the date hereof shall not would be entitled to any distribution pursuant to in accordance with this Section 7.1(d) upon a liquidation of the Company unless an amount of Profit has been allocated to such holders pursuant to this sentence equal to the amount to be distributed to them; provided, that the -------- Company shall not make any Distributions under Section 10.2(b)(iii) without the express written consent of the holder(s) of a more than sixty percent of the outstanding Class A Units issued pursuant to the Securities Purchase Agreement on the date hereof unless such Distributions can be made pursuant to Section 7.1(d) on a pro rata per Common Investment Unit basis10.03(b).