A LIQUIDATING TRUSTEE, AS THE CASE MAY BE, MAY, IN THE NAME OF, AND
FOR AND ON BEHALF OF, THE COMPANY, PROSECUTE AND DEFEND SUITS, WHETHER CIVIL,
CRIMINAL OR ADMINISTRATIVE, GRADUALLY SETTLE AND CLOSE THE COMPANY'S BUSINESS,
DISPOSE OF AND CONVEY THE COMPANY'S PROPERTY, DISCHARGE OR MAKE REASONABLE
PROVISION FOR THE COMPANY'S LIABILITIES, AND DISTRIBUTE TO THE MEMBERS IN
ACCORDANCE WITH SECTION 10.3 ANY REMAINING ASSETS OF THE COMPANY, ALL WITHOUT
AFFECTING THE LIABILITY OF MEMBERS, INCLUDING THE MEMBER PARTICIPATING IN THE
WINDING UP OF THE COMPANY'S AFFAIRS, AND WITHOUT IMPOSING LIABILITY ON ANY
LIQUIDATING TRUSTEE.
(C)
UPON THE COMPLETION OF WINDING UP OF THE
COMPANY, THE MANAGING MEMBERS OR A LIQUIDATING TRUSTEE, AS THE CASE MAY BE,
SHALL FILE A CERTIFICATE OF CANCELLATION OF THE CERTIFICATE IN THE OFFICE OF THE
DELAWARE SECRETARY OF STATE AS PROVIDED IN THE ACT.
THE EXISTENCE OF THE
COMPANY AS A SEPARATE LEGAL ENTITY SHALL CONTINUE UNTIL CANCELLATION OF THE
CERTIFICATE AS PROVIDED IN THE ACT.
10.3
DISTRIBUTION OF ASSETS.
UPON THE WINDING UP OF
THE COMPANY, THE ASSETS SHALL BE DISTRIBUTED AS FOLLOWS:
(1)
TO THE SATISFACTION OF DEBTS AND
LIABILITIES OF THE COMPANY OWED TO CREDITORS (WHETHER BY PAYMENT OR THE MAKING
OF REASONABLE PROVISION FOR PAYMENT THEREOF), IN ORDER OF PRIORITY AS PROVIDED
BY LAW, OTHER THAN DEBTS AND LIABILITIES OWED TO MEMBERS, INCLUDING TO THE
PAYMENT OF EXPENSES OF THE LIQUIDATION AND TO THE SETTING UP OF ANY RESERVES
THAT THE MANAGING MEMBERS OR THE LIQUIDATING TRUSTEE, AS THE CASE MAY BE, SHALL
DETERMINE ARE REASONABLY NECESSARY FOR ANY CONTINGENT, CONDITIONAL OR UNMATURED
LIABILITIES OR OBLIGATIONS OF THE COMPANY;
(2)
TO THE SATISFACTION OF DEBTS AND
LIABILITIES OF THE COMPANY OWED TO MEMBERS; AND
63
(3)
TO THE CAPITAL MEMBERS IN ACCORDANCE WITH
THEIR RESPECTIVE CAPITAL ACCOUNT BALANCES AFTER ALLOCATION OF PROFITS AND LOSSES
FOR THE PERIOD ENDING IMMEDIATELY PRIOR TO SUCH DISTRIBUTION.
Notwithstanding the foregoing, and subject to Section 18-804 of the Act,
distributions to a Member pursuant to this Section 10.3(3) shall only be made
after payment in full of any Member Loans owed to the Lender Members out of such
distributions and such payments shall be deemed a distribution to the Debtor
Members followed by the payment provided for in this sentence.
10.4
DEEMED CONTRIBUTION AND DISTRIBUTION.
IN THE
EVENT THE COMPANY IS LIQUIDATED WITHIN THE MEANING OF TREASURY REGULATIONS
SECTION 1.704-1(B)(2)(II)(G) BUT NO DISSOLUTION OF THE COMPANY PURSUANT TO
SECTION 10.1 HEREOF HAS OCCURRED, THE ASSETS OF THE COMPANY SHALL NOT BE
LIQUIDATED, THE COMPANY'S LIABILITIES SHALL NOT BE PAID OR DISCHARGED, AND THE
COMPANY'S AFFAIRS SHALL NOT BE WOUND UP. INSTEAD, SOLELY FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES, THE COMPANY SHALL BE DEEMED TO HAVE CONTRIBUTED ALL
OF ITS ASSETS AND LIABILITIES TO A NEW PARTNERSHIP IN EXCHANGE FOR AN INTEREST
IN SUCH NEW PARTNERSHIP AND, IMMEDIATELY THEREAFTER, THE COMPANY WILL BE DEEMED
TO LIQUIDATE BY DISTRIBUTING INTERESTS IN THE NEW PARTNERSHIP TO THE MEMBERS.
ARTICLE 11
AMENDMENTS
11.1
AMENDMENTS.
THIS AGREEMENT,