GIS » Topics » 4.1 Amounts Distributed.

This excerpt taken from the GIS 8-K filed Aug 3, 2007.

         4.1 Amounts Distributed.

        (a)  Preferred Return Distributions. Except as otherwise provided in Section 13, the Managing Member shall cause the Company to distribute Cash Available for Distribution (determined as of the time such distributions are required to be made pursuant to this Section 4.1(a)) to the Limited Members as follows:

                (i)        First, on each Class A Distribution Date, to the Class A Limited Members in proportion to, and to the extent of, an amount equal to the excess, if any, of (i) the cumulative amount of the Class A Limited Member Preferred Return accrued during the period from and including May 24, 2002 to but excluding the last day of the Fiscal Quarter ending on or immediately following such Class A Distribution Date for each such Class A Limited Member, over (ii) the cumulative amount of Cash previously distributed to such Class A Limited Member pursuant to this Section 4.1(a)(i); and

                (ii)        Second, on each Class B Distribution Date, commencing January 15, 2005, to the Class B Limited Members in proportion to, and to the extent of, an amount equal to the excess, if any, of (i) the cumulative amount of the Class B Limited Member Preferred Return accrued during the period from and including the May 24, 2002 to but excluding Class B Distribution Date, over (ii) the cumulative amount of Cash previously distributed to such Class B Limited Member pursuant to this Section 4.1(a)(ii); provided that no distributions shall be made pursuant to this Section 4.1(a)(ii) unless (A) at the time such distribution is otherwise required to be made and as of the immediately preceding Class A Distribution Date, Cash Available for Distribution was at least equal to the sum of (x) the amounts required to be distributed on such preceding Class A Distribution Date pursuant to Section 4.1(a)(i) plus (y) the amounts required to be distributed on the current Class B Distribution Date pursuant this Section 4.1(a)(ii); (B) Profits of the Company for the current Allocation Year through such Class B Distribution Date (calculated as if such date were the last day of the Allocation Year) equal or exceed the amounts required to be distributed pursuant to Section 4.1(a)(i) and (a)(ii) as of such Class B Distribution Date; and (C) at the time of such distribution no Class A Notice Event, Liquidating Event or other event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute a Class A Notice Event or Liquidating Event has occurred and is continuing.

        Distributions pursuant to this Section 4.1(a) (including any distributions made subsequent to the Class A Distribution Date or Class B Distribution Date, as applicable, on which they were required to be made but prior to the succeeding Class A Distribution Date or Class B Distribution Date, as applicable, on which distributions are required to be made) shall be made to Members of record fifteen (15) days prior to the relevant Class A Distribution Date or Class B Distribution Date, as applicable. Notwithstanding any provision to the contrary in this Section 4.1(a), the Managing Member shall cause, to the extent there is sufficient Cash Available for Distribution, there to be distributed to the Limited Members as constituted immediately prior to the sale by

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GM Class B of all of its Series B-1 Limited Membership Interests, any accrued but undistributed Limited Member Preferred Return with respect to such Limited Membership Interests and such distributions shall for all purposes of this Agreement be deemed to have been made pursuant to Section 4.1(a).

        (b)  Annual Distribution of Certain Profits and Gains. Except as otherwise provided in Section 13 and provided all distributions required to be made pursuant to Section 4.1 have been made, the Managing Member shall cause the Company to notify, within 150 days after the end of each Allocation Year, each Member of the amount to be distributed to it pursuant to this Section 4.1(b), and to distribute Cash Available for Distribution no later than 180 days after the end of each Allocation Year, such distribution to be made, except as otherwise provided in Section 4.1(e) with respect to the Series B-1 Limited Membership Interests, to the Members of record during such Allocation Year in proportion to the number of days such Members held their respective Limited Membership Interests during such Allocation Year, in the following order and priority:

                (i)        First, to the Class A Limited Members and any other Person that was a Class A Limited Member during the relevant Allocation Year in an amount equal to the sum of (x) the Profits, if any, allocated to such Class A Limited Member or other Person pursuant to Sections 3.1(h) and 3.1(i) for such Allocation Year, plus (y) if the Company sold or disposed of all or substantially all of its Permitted Assets during the Allocation Year, the aggregate amount of gain, if any, from such sales or dispositions that was allocated to such Class A Limited Member or other Person pursuant to Sections 3.3(j)(vi), 3.3(j)(vii), 3.3(j)(viii), and 3.3(j)(ix) for such Allocation Year; and

                (ii)        Second, to the Class B Limited Members and any other Person that was a Class B Limited Member during the relevant Allocation Year in an amount equal to the sum of (x) the Profits, if any, allocated to such Class B Limited Member or other Person pursuant to Sections 3.1(h) and 3.1(i) for such Allocation Year plus (y) if the Company sold or disposed of all or substantially all of its Permitted Assets during the Allocation Year, the aggregate amount of gain, if any, from such sales or dispositions that was allocated to such Class B Limited Member or other Person pursuant to Sections 3.3(j)(vi), 3.3(j)(vii), 3.3(j)(viii), and 3.3(j)(ix) for such Allocation Year;

provided that any distributions of Cash Available for Distribution required to be made to a GMI Member pursuant to this Section 4.1(b) shall be made at such times as are determined by the Managing Member in its sole discretion and any amounts otherwise distributable to a GMI Member pursuant to this Section 4.1(b) that are deferred by the Managing Member shall be added to the distribution to which such GMI Member is entitled to receive at such times as the Managing Member makes distribution to the GMI Member pursuant to this Section 4.1(b); provided, further, that any such deferred distributions shall not be made until all distributions otherwise required to be made pursuant to this Section 4.1(b) have been made. To the extent there is insufficient Cash Available for Distribution to make the distributions required by this Section 4.1(b), the amount not distributed shall be distributed as soon as there is sufficient Cash Available for Distribution, such distributions to be made after any distributions required pursuant to Section 4.1(a) but prior to any other distributions required under this Section 4.

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        (c)  Requirements Regarding Undistributed Cash. Cash Available for Distribution that is not distributed pursuant to Sections 4.1(a) and 4.1(b) shall, unless used by the Company to satisfy a requirement set forth herein, either be (i) distributed to the Managing Member on a weekly basis, or at such other times as are determined by the Managing Member, in such amounts as are determined by the Managing Member; provided that no distributions shall be made pursuant to this Section 4.1(c)(i) unless (A) at the time such distribution is otherwise permitted to be made, Cash Available for Distribution is at least equal to the sum of (x) the amounts required to be distributed on the following Class A Distribution Date pursuant to Section 4.1(a)(i) plus (y) the amounts required to be distributed on the following Class B Distribution Date pursuant to Section 4.1(a)(ii) plus (z) the amounts proposed to be distributed to the Managing Member on the current Managing Member Distribution Date pursuant this Section 4.1(c)(i); (B) Profits of the Company for the current Allocation Year through such Managing Member Distribution Date (calculated as if such date were the last day of the Allocation Year) equal or exceed the amounts required to be distributed pursuant to Section 4.1(a)(i) and (a)(ii) as of such Managing Member Distribution Date; and (C) at the time of such distribution no Class A Notice Event, Liquidating Event or other event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute a Class A Notice Event or Liquidating Event has occurred and is continuing or would result from any such distribution, or (ii) invested in Permitted Assets.

        (d)   Limitation.   Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of its Membership Interests if such distribution would violate the Act or other applicable law.

        (e)   Distributions to Securities Depository.   All distributions made pursuant to this Section 4 with respect to Series B-1 Limited Membership Interests, shall be made to the Securities Depository or its nominee as the Series B-1 Limited Member for so long as the Series B-1 Certificates are registered in the name of the Securities Depository or its nominee.

         4.2 Amounts Withheld.

        All amounts properly withheld pursuant to the Code or any provision of any state, local, or foreign tax law with respect to any payment, distribution, or allocation to the Company or the Members shall be treated as amounts paid or distributed, as the case may be, to the Members with respect to which such amount was withheld pursuant to this Section 4.2 for all purposes under this Agreement. The Company is authorized to withhold from payments and distributions, or with respect to allocations, to the Members, and to pay over to any federal, state, and local government or any foreign government, any amounts required to be so withheld pursuant to the Code or any provisions of any other federal, state, or local law or any foreign law, and shall allocate any such amounts to the Members with respect to which such amount was withheld.

         4.3 Limitations on Distributions.

        The Company shall make no distributions to the Members except (i) as provided in this Section 4 and Section 13, or (ii) to the extent not inconsistent with Section 4 and Section 13 or with the provisions of any of the Transaction Documents, as agreed to by all of the Members.

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         4.4 Distributions and Payments to Members.

        It is the intent of the Members that no distribution or payment to any Member (including distributions under Sections 4.1 and 13.2) shall be deemed a return of money or other property in violation of the Act. The payment or distribution of any such money or property to a Member shall be deemed to be a compromise within the meaning of Section 18-502(b) of the Act, and the Member receiving any such money or property shall not be required to return any such money or property to the Company, any creditor of the Company or any other Person. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to return such money or property, such obligation shall be the obligation of such Member and not of the Company, any other Member or the Managing Member. Any amounts required to be paid under such obligation shall be treated as a permitted additional Capital Contribution pursuant to Section 2.2.

This excerpt taken from the GIS 10-Q filed Jan 6, 2005.

        4.1     Amounts Distributed.

        (a)    Preferred Return Distributions.   Except as otherwise provided in Section 13, the Managing Member shall cause the Company to distribute Cash Available for Distribution (determined as of the time such distributions are required to be made pursuant to this Section 4.1(a)) to the Limited Members as follows:

                (i)    First, on each Class A Distribution Date, to the Class A Limited Members in proportion to, and to the extent of, an amount equal to the excess, if any, of (i) the cumulative amount of the Class A Limited Member Preferred Return accrued during the period from and including May 24, 2002 to but excluding the last day of the Fiscal Quarter ending on or immediately following such Class A Distribution Date for each such Class A Limited Member, over (ii) the cumulative amount of Cash previously distributed to such Class A Limited Member pursuant to this Section 4.1(a)(i); and

                (ii)    Second, on each Class B Distribution Date, commencing January 15, 2005, to the Class B Limited Members in proportion to, and to the extent of, an amount equal to the excess, if any, of (i) the cumulative amount of the Class B Limited Member Preferred Return accrued during the period from and including the May 24, 2002 to but excluding Class B Distribution Date, over (ii) the cumulative amount of Cash previously distributed to such Class B Limited Member pursuant to this Section 4.1(a)(ii); provided that no distributions shall be made pursuant to this Section 4.1(a)(ii) unless (A) at the time such distribution is otherwise required to be made and as of the immediately preceding Class A Distribution Date, Cash Available for Distribution was at least equal to the sum of (x) the amounts required to be distributed on such preceding Class A Distribution Date pursuant to Section 4.1(a)(i) plus (y) the amounts required to be distributed on the current Class B Distribution Date pursuant this Section 4.1(a)(ii); (B) Profits of the Company for the current Allocation Year through such Class B Distribution Date (calculated as if such date were the last day of the Allocation Year) equal or exceed the amounts required to be distributed pursuant to Section 4.1(a)(i) and (a)(ii) as of such Class B Distribution Date; and (C) at the time of such distribution no Class A Notice Event, Liquidating Event or other event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute a Class A Notice Event or Liquidating Event has occurred and is continuing.

        Distributions pursuant to this Section 4.1(a) (including any distributions made subsequent to the Class A Distribution Date or Class B Distribution Date, as applicable, on which they were required to be made but prior to the succeeding Class A Distribution Date or Class B Distribution



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Date, as applicable, on which distributions are required to be made) shall be made to Members of record fifteen (15) days prior to the relevant Class A Distribution Date or Class B Distribution Date, as applicable. Notwithstanding any provision to the contrary in this Section 4.1(a), the Managing Member shall cause, to the extent there is sufficient Cash Available for Distribution, there to be distributed to the Limited Members as constituted immediately prior to the sale by GM Class B of all of its Series B-1 Limited Membership Interests, any accrued but undistributed Limited Member Preferred Return with respect to such Limited Membership Interests and such distributions shall for all purposes of this Agreement be deemed to have been made pursuant to Section 4.1(a).

        (b)    Annual Distribution of Certain Profits and Gains.   Except as otherwise provided in Section 13 and provided all distributions required to be made pursuant to Section 4.1 have been made, the Managing Member shall cause the Company to notify, within 150 days after the end of each Allocation Year, each Member of the amount to be distributed to it pursuant to this Section 4.1(b), and to distribute Cash Available for Distribution no later than 180 days after the end of each Allocation Year, such distribution to be made to the Members of record during such Allocation Year in proportion to the number of days such Members held their respective Limited Membership Interests during such Allocation Year, in the following order and priority:

                (i)    First, to the Class A Limited Members in an amount equal to the sum of (x) the Profits, if any, allocated to such Class A Limited Member pursuant to Sections 3.1(h) and 3.1(i) for such Allocation Year, plus (y) if the Company sold or disposed of all or substantially all of its Permitted Assets during the Allocation Year, the aggregate amount of gain, if any, from such sales or dispositions that was allocated to such Class A Limited Member pursuant to Sections 3.3(j)(vi), 3.3(j)(vii), 3.3(j)(viii), and 3.3(j)(ix) for such Allocation Year; and

                (ii)    Second, to the Class B Limited Members in an amount equal to the sum of (x) the Profits, if any, allocated to such Class B Limited Member pursuant to Sections 3.1(h) and 3.1(i) for such Allocation Year plus (y) if the Company sold or disposed of all or substantially all of its Permitted Assets during the Allocation Year, the aggregate amount of gain, if any, from such sales or dispositions that was allocated to such Class B Limited Member pursuant to Sections 3.3(j)(vi), 3.3(j)(vii), 3.3(j)(viii), and 3.3(j)(ix) for such Allocation Year;

provided that any distributions of Cash Available for Distribution required to be made to a GMI Member pursuant to this Section 4.1(b) shall be made at such times as are determined by the Managing Member in its sole discretion and any amounts otherwise distributable to a GMI Member pursuant to this Section 4.1(b) that are deferred by the Managing Member shall be added to the distribution to which such GMI Member is entitled to receive at such times as the Managing Member makes distribution to the GMI Member pursuant to this Section 4.1(b); provided, further, that any such deferred distributions shall not be made until all distributions otherwise required to be made pursuant to this Section 4.1(b) have been made. To the extent there is insufficient Cash Available for Distribution to make the distributions required by this Section 4.1(b), the amount not distributed shall be distributed as soon as there is sufficient Cash Available for Distribution, such distributions to be made after any distributions required pursuant to Section 4.1(a) but prior to any other distributions required under this Section 4.



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        (c)    Requirements Regarding Undistributed Cash.   Cash Available for Distribution that is not distributed pursuant to Sections 4.1(a) and 4.1(b) shall, unless used by the Company to satisfy a requirement set forth herein, either be (i) distributed to the Managing Member at such times and in such amounts as are determined by the Managing Member; provided that no Class A Notice Event, Liquidating Event or other event or condition that, but for the requirement that time elapse or notice be given, or both, would constitute a Class A Notice Event or Liquidating Event has occurred and is continuing or would result from any such distribution, at such times and in such amounts as are determined by the Managing Member, or (ii) invested in Permitted Assets.

        (d)    Limitation.   Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of its Membership Interests if such distribution would violate the Act or other applicable law.

EXCERPTS ON THIS PAGE:

8-K
Aug 3, 2007
10-Q
Jan 6, 2005
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