Common use of Preferred Distributions Clause in Contracts

Preferred Distributions. Persons holding Preferred Units shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in cash with respect to each Preferred Unit in an amount equal to the product of (i) the Preferred Distribution Rate multiplied by (ii) the Preference Accrual (the “Quarterly Distribution Amount”); provided, however, that if the Effective Date is a day other than the first day of a Fiscal Quarter, then the first payment made hereunder shall be prorated accordingly. The Partnership shall pay such Distributions on the Preferred Units in cash, unless prohibited by the Senior Debt Agreements or any Replacement Credit Agreement. If any Distribution (or portion thereof) contemplated by this Section 4.1(b) is not paid in cash in accordance with the terms of this Agreement, then such Distribution (or portion thereof) shall accrue and shall be added to the Unpaid Amounts and thereupon become part of the Preference Accrual with respect to such Preferred Unit. In furtherance of the foregoing, all additions to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General Partner.

Preferred Distributions. Persons holding Preferred Units On or before the last Business Day of each month immediately following the end of each calendar quarter (a "Due Date"), commencing with the calendar quarter ending December 31, 1998, the Company shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in distribute cash with respect to each Class A Preferred Unit Member in an amount equal to the product initial balance in such Class A Preferred Member's Preferred Capital Account multiplied by such Class A Preferred Member's preferred distribution percentage (each such distribution is hereinafter referred to as a "Preferred Distribution"), and commencing as of such Class A Preferred Member's initial Due Date, as reflected on Exhibit A and Schedule A attached hereto, provided, that at all times during which a Default has occurred and remains in effect and has not been waived in writing by the Majority Investors, then the preferred distribution percentage for the Class A Preferred Interests held by the Investors shall automatically be adjusted to equal 3.25%; and provided, further, that at all times during which an Event of Default has occurred and remains in effect and has not been waived in writing by the Majority Investors, then the preferred distribution percentage for the Class A Preferred Interests held by the Investors shall automatically be adjusted to equal 3.75%. Notwithstanding the immediately preceding sentence, no Preferred Distribution shall be required if such distribution would, as reasonably determined by the Board of Directors, cause a default under any agreement or covenant between a bank or other lending institution and any one of the Company or the Operating Companies (any such limitation that precludes payment of a Preferred Distribution being referred to as the "Limitation"). In the event any Preferred Distribution, or portion thereof, is not made with respect to a calendar quarter, such Preferred Distribution, or portion thereof, (the "Accrued Preferred Distribution"), shall accumulate and be payable at such time as the Limitation no longer prevents payment. In addition, with respect to any such Accrued Preferred Distribution there shall be payable an amount equal to (A) times (B) times (C), where (A) equals such Accrued Preferred Distribution, (B) equals a percentage equal to the higher of the Company's cost of funds or the cost of funds of any of the Operating Companies, and (C) equals a fraction, the numerator of which is the number of days since the Due Date of such Accrued Preferred Distribution or the most recent anniversary thereof, and the denominator of which is 365 (such additional amount and any unpaid portion thereof is hereinafter referred to as the "Arrearage"). If any Arrearage is not paid by an anniversary Due Date of the related Accrued Preferred Distribution, then such Arrearage shall be added to and become a part of the Accrued Preferred Distribution as of such anniversary date and shall no longer be an "Arrearage" hereunder. All payments made pursuant to this Section 4.2 shall be applied first to any Arrearage and then to the Accrued Preferred Distribution. Each Preferred Distribution is intended to be and shall be treated as a distribution to the Member in its capacity as a Member, and not as a guaranteed payment under section 707(c) of the Code. Accordingly, notwithstanding any other provision herein to the contrary, (i) the Preferred Distribution Rate multiplied by Distributions shall be applied to reduce each Class A Preferred Members' positive Preferred Capital Account, which shall result in a net reduction (taking into account the income allocation under Section 4.6(a)(ii) hereof) of such Preferred Capital Account equal to the amount of the excess distribution; and (ii) the Preference Accrual (the “Quarterly a Member shall not receive payment of any part of any Preferred Distribution Amount”); provided, however, that if the Effective Date is a day other than the first day of a Fiscal Quarter, then the first payment made hereunder shall be prorated accordingly. The Partnership shall pay such Distributions on the Preferred Units in cash, unless prohibited by the Senior Debt Agreements or any Replacement Credit Agreement. If any Distribution (or portion thereof) contemplated by this Section 4.1(b) is not paid in cash in accordance with the terms of this Agreement, then such Distribution (or portion thereof) shall accrue and shall be added to the Unpaid Amounts and thereupon become part of the Preference Accrual with respect to extent that such Preferred Unit. In furtherance of the foregoing, all additions Distribution would cause such Member to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General Partneran Adjusted Capital Account Deficit.

Preferred Distributions. Persons holding Preferred Units On or before the last Business Day of each month immediately following the end of each calendar quarter (a "Due Date"), commencing with the calendar quarter ending December 31, 1999, the Company shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in distribute cash with respect to each Preferred Unit Member in an amount equal to the product of (i) the initial balance in such Preferred Distribution Rate Member's Preferred Capital Account multiplied by 2.0% (ii) the Preference Accrual (the “Quarterly Distribution Amount”a "Preferred Distribution"); provided, however, no such Preferred Distribution shall be required if such distribution would, as reasonably determined by a Voting Member Majority, cause a default under any agreement or covenant between a bank or other lending institution and the Company or any one of its Affiliates (any such limitation that if the Effective Date is a day other than the first day precludes payment of a Fiscal QuarterPreferred Distribution being referred to as the "Limitation"). In the event any Preferred Distribution, then or portion thereof, is not made with respect to a calendar quarter, such Preferred Distribution, or portion thereof (the first payment made hereunder "Accrued Preferred Distribution"), shall accumulate and be payable at such time as the Limitation no longer prevents payment. In addition, with respect to any such Accrued Preferred Distribution there shall be prorated accordingly. The Partnership shall pay payable an amount equal to (A) times (B) times (C), where (A) equals such Distributions on Accrued Preferred Distribution, (B) equals a percentage equal to the higher of the Company's cost of funds or the cost of funds of any of the Affiliates of the Company, and (C) equals a fraction, the numerator of which is the number of days since the Due Date of such Accrued Preferred Units in cashDistribution or the most recent anniversary thereof, unless prohibited by and the Senior Debt Agreements or denominator of which is 365 (such additional amount and any Replacement Credit Agreementunpaid portion thereof is hereinafter referred to as the "Arrearage"). If any Distribution (or portion thereof) contemplated by this Section 4.1(b) Arrearage is not paid in cash in accordance with by an anniversary of the terms Due Date of this Agreementthe related Accrued Preferred Distribution, then such Distribution (or portion thereof) shall accrue and Arrearage shall be added to the Unpaid Amounts and thereupon become a part of the Preference Accrual with respect Accrued Preferred Distribution as of such anniversary date and shall no longer be an "Arrearage" hereunder. All payments made pursuant to such Preferred Unit. In furtherance of the foregoing, all additions this Section 4.2 shall be applied first to any Arrearage and then to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Accrued Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General PartnerDistribution.

Preferred Distributions. Persons holding Preferred Units On or before the last Business Day of each month immediately following the end of each calendar quarter (a "Due Date"), commencing with the calendar quarter ending December 31, 1998, the Company shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in distribute cash with respect to each Class A Preferred Unit Member in an amount equal to the product of (i) the initial balance in such Class A Preferred Distribution Rate Member's Preferred Capital Account multiplied by 2.25% (ii) the Preference Accrual (the “Quarterly Distribution Amount”a "Preferred Distribution"); provided, however, no such Preferred Distribution shall be required if such distribution would, as reasonably determined by a Voting Member Majority, cause a default under any agreement or covenant between a bank or other lending institution and any one of the Company or the Operating Companies (any such limitation that if the Effective Date is a day other than the first day precludes payment of a Fiscal QuarterPreferred Distribution being referred to as the "Limitation"). In the event any Preferred Distribution, then or portion thereof, is not made with respect to a calendar quarter, such Preferred Distribution, or portion thereof (the first payment made hereunder "Accrued Preferred Distribution"), shall accumulate and be payable at such time as the Limitation no longer prevents payment. In addition, with respect to any such Accrued Preferred Distribution there shall be prorated accordingly. The Partnership shall pay payable an amount equal to (A) times (B) times (C), where (A) equals such Distributions on Accrued Preferred Distribution, (B) equals a percentage equal to the higher of the Company's cost of funds or the cost of funds of any of the Operating Companies, and (C) equals a fraction, the numerator of which is the number of days since the Due Date of such Accrued Preferred Units in cashDistribution or the most recent anniversary thereof, unless prohibited by and the Senior Debt Agreements or denominator of which is 365 (such additional amount and any Replacement Credit Agreementunpaid portion thereof is hereinafter referred to as the "Arrearage"). If any Distribution (or portion thereof) contemplated by this Section 4.1(b) Arrearage is not paid in cash in accordance with by an anniversary of the terms Due Date of this Agreementthe related Accrued Preferred Distribution, then such Distribution (or portion thereof) shall accrue and Arrearage shall be added to the Unpaid Amounts and thereupon become a part of the Preference Accrual with respect Accrued Preferred Distribution as of such anniversary date and shall no longer be an "Arrearage" hereunder. All payments made pursuant to such Preferred Unit. In furtherance of the foregoing, all additions this Section 4.2 shall be applied first to any Arrearage and then to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Accrued Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General PartnerDistribution.

Preferred Distributions. Persons holding Preferred Units On or before the last Business Day of each month immediately following the end of each calendar quarter (a "Due Date"), commencing with the calendar quarter ending December 31, 1998, the Company shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in distribute cash with respect to each Class A Preferred Unit Member in an amount equal to the product of (i) the initial balance in such Class A Preferred Distribution Rate Member's Preferred Capital Account multiplied by (ii) the Preference Accrual (the “Quarterly Distribution Amount”)2.25%; provided, however, the Company shall distribute cash to Xxxxx X. Xxxxxx in an amount equal to the initial balance in Xxxxx X. Xxxxxx'x Preferred Capital Account multiplied by 2.0% on each Due Date, commencing with the April 30, 1999 Due Date (each such distribution is hereinafter referred to as a "Preferred Distribution"). Notwithstanding the immediately preceding sentence, no Preferred Distribution shall be required if such distribution would, as reasonably determined by a Voting Member Majority, cause a default under any agreement or covenant between a bank or other lending institution and any one of the Company or the Operating Companies (any such limitation that if the Effective Date is a day other than the first day precludes payment of a Fiscal QuarterPreferred Distribution being referred to as the "Limitation"). In the event any Preferred Distribution, then or portion thereof, is not made with respect to a calendar quarter, such Preferred Distribution, or portion thereof (the first payment made hereunder "Accrued Preferred Distribution"), shall accumulate and be payable at such time as the Limitation no longer prevents payment. In addition, with respect to any such Accrued Preferred Distribution there shall be prorated accordingly. The Partnership shall pay payable an amount equal to (A) times (B) times (C), where (A) equals such Distributions on Accrued Preferred Distribution, (B) equals a percentage equal to the higher of the Company's cost of funds or the cost of funds of any of the Operating Companies, and (C) equals a fraction, the numerator of which is the number of days since the Due Date of such Accrued Preferred Units in cashDistribution or the most recent anniversary thereof, unless prohibited by and the Senior Debt Agreements or denominator of which is 365 (such additional amount and any Replacement Credit Agreementunpaid portion thereof is hereinafter referred to as the "Arrearage"). If any Distribution (or portion thereof) contemplated by this Section 4.1(b) Arrearage is not paid in cash in accordance with by an anniversary of the terms Due Date of this Agreementthe related Accrued Preferred Distribution, then such Distribution (or portion thereof) shall accrue and Arrearage shall be added to the Unpaid Amounts and thereupon become a part of the Preference Accrual with respect Accrued Preferred Distribution as of such anniversary date and shall no longer be an "Arrearage" hereunder. All payments made pursuant to such Preferred Unit. In furtherance of the foregoing, all additions this Section 4.2 shall be applied first to any Arrearage and then to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Accrued Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General PartnerDistribution.

Preferred Distributions. Persons holding Preferred Units On or before the last Business Day of each month immediately following the end of each calendar quarter (a "Due Date"), commencing with the calendar quarter ending December 31, 1998, the Company shall be entitled to receive, on each Preferred Payment Date, with respect to the Fiscal Quarter then ended, a Distribution in distribute cash with respect to each Class A Preferred Unit Member in an amount equal to the product initial balance in such Class A Preferred Member's Preferred Capital Account multiplied by such Class A Preferred Member's preferred distribution percentage (each such distribution is hereinafter referred to as a "Preferred Distribution"), and commencing as of (i) such Class A Preferred Member's initial Due Date, as reflected on Exhibit A and Schedule A attached hereto. Notwithstanding the immediately preceding sentence, no Preferred Distribution Rate multiplied shall be required if such distribution would, as reasonably determined by a Voting Member Majority, cause a default under any agreement or covenant between a bank or other lending institution and any one of the Company or the Operating Companies (ii) any such limitation that precludes payment of a Preferred Distribution being referred to as the Preference Accrual "Limitation"). In the event any Preferred Distribution, or portion thereof, is not made with respect to a calendar quarter, such Preferred Distribution, or portion thereof (the “Quarterly "Accrued Preferred Distribution"), shall accumulate and be payable at such time as the Limitation no longer prevents payment. In addition, with respect to any such Accrued Preferred Distribution Amount”); provided, however, that if the Effective Date is a day other than the first day of a Fiscal Quarter, then the first payment made hereunder there shall be prorated accordingly. The Partnership shall pay payable an amount equal to (A) times (B) times (C), where (A) equals such Distributions on Accrued Preferred Distribution, (B) equals a percentage equal to the higher of the Company's cost of funds or the cost of funds of any of the Operating Companies, and (C) equals a fraction, the numerator of which is the number of days since the Due Date of such Accrued Preferred Units in cashDistribution or the most recent anniversary thereof, unless prohibited by and the Senior Debt Agreements or denominator of which is 365 (such additional amount and any Replacement Credit Agreementunpaid portion thereof is hereinafter referred to as the "Arrearage"). If any Distribution (or portion thereof) contemplated by this Section 4.1(b) Arrearage is not paid in cash in accordance with by an anniversary of the terms Due Date of this Agreementthe related Accrued Preferred Distribution, then such Distribution (or portion thereof) shall accrue and Arrearage shall be added to the Unpaid Amounts and thereupon become a part of the Preference Accrual with respect Accrued Preferred Distribution as of such anniversary date and shall no longer be an "Arrearage" hereunder. All payments made pursuant to such Preferred Unit. In furtherance of the foregoing, all additions this Section 4.2 shall be applied first to any Arrearage and then to the Preference Accrual resulting from such Distribution being less than the Quarterly Distribution Amount shall be deemed made automatically and without any further action by the Partnership, the General Partner, or any other Person and therefore shall become part of the Preference Accrual. At least two (2) Business Days prior to any applicable Accrued Preferred Payment Date, the Partnership shall notify the Preferred Partners in writing as to whether the Partnership has elected to pay the Distribution contemplated by this Section 4.1(b) in respect of the applicable Fiscal Quarter in cash on such Preferred Payment Date or has elected instead to defer payment of such Distribution and have the accrued but unpaid amount of such Distribution added to the Unpaid Amounts. In addition to the foregoing, the Partnership may make cash Distributions with respect to any Unpaid Amounts on a date other than a Preferred Payment Date, as determined by the General PartnerDistribution.