Common use of Allocation of Net Capital Gain Clause in Contracts

Allocation of Net Capital Gain. After giving effect to Section 1.5 and Section 1.3 of this Exhibit, for any Fiscal Year, the items of income, expense, gain and loss of the Company comprising Net Capital Gain shall be allocated as follows: (1) First, to the Members who have previously been allocated Net Losses or Net Capital Loss pursuant to Section 1.5(f)(3) of this Exhibit in the reverse order and in the same ratio of such Losses so allocated, until the aggregate Net Capital Gain and Net Income allocated to each such Member pursuant to this Section 1.4(a)(1) and Section 1.3(a)(1) is equal to the aggregate Net Losses and Net Capital Loss allocated to that Member pursuant to said Section 1.5(f)(3); (2) Second, to the Members who have previously been allocated Net Losses or Net Capital Loss pursuant to Section 1.5(f)(2) of this Exhibit in the reverse order and in the same ratio of such Losses so allocated, until the aggregate Net Capital Gain and Net Income allocated to each such Member pursuant to this Section 1.4(a)(2) and Section 1.3(a)(2) is equal to the aggregate Net Losses and Net Capital Loss allocated to that Member pursuant to said Section 1.5(f)(2); (3) Third, to the Managing Member until the aggregate Net Capital Gain allocated to the Managing Member pursuant to this Section 1.4(a)(3) causes the Adjusted Capital Account of the Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(c) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive a ten percent (10%) cumulative, non-compounding annual return upon and in respect to the amount of the Unreturned Capital Contribution of Managing Member taking into account the aggregate amount distributed to the Managing Member pursuant to Sections 4.1 and 4.2(c) of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(3) is being made; (4) Fourth, to the Non-Managing Member until the aggregate Net Capital Gain allocated to the Non-Managing Member pursuant to this Section 1.4(a)(4) causes the Adjusted Capital Account of the Non-Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(d) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive a ten percent (10%) cumulative, non-compounding annual return upon and in respect to the amount of the Unreturned Capital Contribution of Non-Managing Member taking into account the aggregate amount distributed to the Non-Managing Member pursuant to Sections 4.1 and 4.2(d) of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(4) is being made; (5) Fifth, to the Managing Member until the aggregate Net Capital Gain allocated to the Managing Member pursuant to this Section 1.4(a)(5) causes the Adjusted Capital Account of the Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(e) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive an amount equal to its Unreturned Capital Contribution balance; (6) Sixth, to the Non-Managing Member until the aggregate Net Capital Gain allocated to the Non-Managing Member pursuant to this Section 1.4(a)(6) causes the Adjusted Capital Account of the Non-Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(f) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive an amount equal to its Unreturned Capital Contribution balance; (7) Seventh, to the Members, in accordance with their respective Membership Percentages until the aggregate Net Capital Gain allocated to the Members pursuant to this Section 1.4(a)(7) causes the Adjusted Capital Account of each Member to equal the amount, which, if distributed pursuant to Section 4.2(g) of the Agreement on the date on which such allocation is being made, would cause said Member to achieve a twelve percent (12%) cumulative, non-compounding annual return upon and in respect to the amount of their respective Unreturned Capital Contribution taking into account the aggregate amount distributed to said Member pursuant to Sections 4.1 and 4.2(g) of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(7) is being made; and (8) Eighth, (i) thirty-five percent (35%) to Non-Managing Member, and (ii) sixty-five percent (65%) to Managing Member.

Allocation of Net Capital Gain. After giving effect to Section 1.5 and Section 1.3 of this Exhibit, for any Fiscal Year, the items of income, expense, gain and loss of the Company comprising Net Capital Gain shall be allocated as follows: (1) First, to the Members who have previously been allocated Net Losses or Net Capital Loss pursuant to Section 1.5(f)(3) of this Exhibit in the reverse order and in the same ratio of such Losses so allocated, until the aggregate Net Capital Gain and Net Income allocated to each such Member pursuant to this Section 1.4(a)(1) and Section 1.3(a)(1) is equal to the aggregate Net Losses and Net Capital Loss allocated to that Member pursuant to said Section 1.5(f)(3); (2) Second, to the Members who have previously been allocated Net Losses or Net Capital Loss pursuant to Section 1.5(f)(2) of this Exhibit in the reverse order and in the same ratio of such Losses so allocated, until the aggregate Net Capital Gain and Net Income allocated to each such Member pursuant to this Section 1.4(a)(2) and Section 1.3(a)(2) is equal to the aggregate Net Losses and Net Capital Loss allocated to that Member pursuant to said Section 1.5(f)(2); (3) Third, to the Members who have previously been allocated Net Capital Loss pursuant to Section 1.4(b)(8) of this Exhibit in the reverse order and in the same ratio of Net Capital Loss so allocated, until the aggregate Net Capital Gain allocated to each such Member pursuant to this Section 1.4(a)(5) is equal to the aggregate Net Capital Loss allocated to that Member pursuant to said Section 1.4(b); (4) Fourth, to the Managing Member until the aggregate Net Capital Gain allocated to the Managing Member pursuant to this Section 1.4(a)(31.4(a)(4) causes the Adjusted Capital Account of the Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(c4.2(d) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive achieve a ten percent (10%) 9% cumulative, non-compounding annual return upon and in respect to the amount of the Unreturned Capital Contribution of Managing Member taking into account the aggregate amount distributed to the Managing Member pursuant to Sections 4.1 and 4.2(c) 4.2 of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(31.4(a)(4) is being made; (45) FourthFifth, to the Non-Managing Member until the aggregate Net Capital Gain allocated to the Non-Managing Member pursuant to this Section 1.4(a)(41.4(a)(5) causes the Adjusted Capital Account of the Non-Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(d) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive achieve a ten percent (10%) 9% cumulative, non-compounding annual return upon and in respect to the amount of the Unreturned Capital Contribution of Non-Managing Member taking into account the aggregate amount distributed to the Non-Managing Member pursuant to Sections 4.1 and 4.2(d) 4.2 of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(41.4(a)(5) is being made; (5) Fifth, to the Managing Member until the aggregate Net Capital Gain allocated to the Managing Member pursuant to this Section 1.4(a)(5) causes the Adjusted Capital Account of the Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(e) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive an amount equal to its Unreturned Capital Contribution balance; (6) Sixth, to the Non-Managing Member until the aggregate Net Capital Gain allocated to the Non-Managing Member pursuant to this Section 1.4(a)(6) causes the Adjusted Capital Account of the Non-Managing Member to equal the amount, which, if distributed pursuant to Section 4.2(f) of the Agreement on the date on which such allocation is being made, would cause the Managing Member to receive an amount equal to its Unreturned Capital Contribution balance; (7) Seventh, to the Members, in accordance with their respective Membership Percentages until the aggregate Net Capital Gain allocated to the Members pursuant to this Section 1.4(a)(71.4(a)(6) causes the Adjusted Capital Account of each Member to equal the amount, which, if distributed pursuant to Section 4.2(g) of the Agreement on the date on which such allocation is being made, would cause said Member to achieve a twelve percent (12%) % cumulative, non-compounding annual return upon and in respect to the amount of their respective Unreturned Capital Contribution taking into account the aggregate amount distributed to said Member pursuant to Sections 4.1 and 4.2(g4.2 of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(6) is being made; (7) Seventh, (i) 40% to Non-Managing Member, and (ii) 60% to Managing Member, until the aggregate Net Capital Gain allocated to the Members pursuant to this Section 1.4(a)(7) causes the Adjusted Capital Account of each Member to equal the amount, which, if distributed pursuant to Section 4.2(h) of the Agreement on the date on which such allocation is being made, would cause said Member to achieve a 15% cumulative, non-compounding annual return upon and in respect to the amount of their respective Unreturned Capital Contribution taking into account the aggregate amount distributed to said Member pursuant to Sections 4.1 and 4.2 of the Agreement from the inception of the Company through the date on which the allocation under this Section 1.4(a)(7) is being made; and (8) EighthThereafter, (i) thirty-five percent (35%) 45% to Non-Managing Member, and (ii) sixty-five percent (65%) % to Managing Member.