Common use of Allocation of Profit or Loss Clause in Contracts

Allocation of Profit or Loss. After giving effect to the allocations and/or adjustments required by Section 4.4 hereof, Profits and Losses for any fiscal year shall be allocated as follows: (a) Profits shall be allocated: (i) first, to each Member which has previously been allocated Losses pursuant to Section 4.3(b), below, which have not been fully offset by allocations of Profits pursuant to this Section 4.3(a)(i) (“Unrecovered Losses”) until the cumulative amount of Profits allocated to each such Member pursuant to this Section 4.3(a)(i) is equal to the cumulative amount of Losses which have been allocated to such Member pursuant to Section 4.3(b), below, it being understood that Profits allocated pursuant to this subsection (i) shall be allocated to the Members in proportion to their respective Unrecovered Losses; (ii) second, to the Class B Members in proportion to the amount of Preferred Return for Class B Membership Units distributed or to be distributed to the Class B Members pursuant to Section 4.1(c) or 4.2 (e), above; (iii) third, to the Class C Members and Class C-1 Members in proportion to the amount of Preferred Return for Class C Membership Units and Preferred Return for Class C-1 Membership Units, respectively, distributed or to be distributed to the Class C Members and Class C-1 Members pursuant to Section 4.1(d) or 4.2(c), above, and (iv) fourth, to the Class A Member. (b) Losses shall be allocated to the Members (i) first, among all the Members in proportion of their positive Capital Account balances, until all such accounts are reduced to zero, and (ii) thereafter in accordance with their Percentage Interests. (c) Notwithstanding Section 4.3(b) hereof, and after application of Treasury Regulation Section 1.704-l(b)(2)(ii)(d), until the terms of the following sentence are satisfied, no such Losses shall be allocated to a Member which would cause such Member to have an Adjusted Capital Account Deficit at the end of any fiscal year. Any Losses not allocated to a Member due to the foregoing limitation instead shall be allocated to the Members with positive Capital Account balances in proportion to such Capital Account balances until all such Capital Account balances have been reduced to zero. (d) Upon any Terminating Capital Transaction, and after adjusting each Member’s Capital Account for the fiscal year in which such Terminating Capital Transaction occurs for all Capital Contributions and distributions made during such fiscal year, and for all other special allocations made pursuant to Section 4.4, below, all Profit and Loss from such Terminating Capital Transaction shall be allocated to the Members’ Capital Accounts in a manner such that, as of the end of such fiscal year, the Capital Account of each Member (which may be either a positive or negative balance) shall equal, as nearly as possible, (a) the amount that would be distributed to such Member in a Hypothetical Liquidation (based on the purchase price associated with such Terminating Capital Transaction) at the end of the last day of such Fiscal Year, minus (b) the sum of (i) such Member’s share of Partnership Minimum Gain (as determined according to Treasury Regulations Sections 1.704-2(d) and (g)(3)) and Partner Nonrecourse Debt Minimum Gain (as determined according to Treasury Regulations Section 1.704-2(i)) and (ii) the amount, if any, such Member is obligated to contribute to the capital of the Company as of the last day of such Fiscal Year, provided, however, that no Loss may be allocated to a Member to the extent such an allocation would result in an Adjusted Capital Account Deficit for such Member. For purposes of the foregoing:

Allocation of Profit or Loss. After giving effect to the allocations and/or adjustments required by Section 4.4 4.3 hereof, Profits and Losses for any fiscal year shall be allocated as follows: (a) Profits shall be allocated: (i) first, to each Member which has previously been allocated Losses pursuant to Section 4.3(b4.2(b), below, which have not been fully offset by allocations of Profits pursuant to this Section 4.3(a)(i4.2(a)(i) (“Unrecovered Losses”) until the cumulative amount of Profits allocated to each such Member pursuant to this Section 4.3(a)(i4.2(a)(i) is equal to the cumulative amount of Losses which have been allocated to such Member pursuant to Section 4.3(b4.2(b), below, it being understood that Profits allocated pursuant to this subsection (i) shall be allocated to the Members in proportion to their respective Unrecovered Losses; (ii) second, to the Class B Members in proportion to proportionate with the cumulative amount of Preferred Return for Class B Membership Units distributed or to be distributed to the Class B Members such Member pursuant to Section 4.1(c) or 4.2 (e), above; and (iii) third, to the Class C Members and Class C-1 Members in proportion to the amount of Preferred Return for Class C Membership Units and Preferred Return for Class C-1 Membership Units, respectively, distributed or to be distributed to the Class C Members and Class C-1 Members pursuant to accordance with Section 4.1(d) or 4.2(c), above, and (iv) fourth, to the Class A Member. (b) Losses shall be allocated to the Members (i) first, among all the Members in proportion of accordance with their positive Capital Account balances, on a pro-rata basis, until all such accounts are reduced to zero, and (ii) thereafter in accordance with their Percentage Interests. (c) Notwithstanding Section 4.3(b4.2(b) hereof, hereof and after application of Treasury Regulation Section 1.704-l(b)(2)(ii)(d), until the terms of the following sentence are satisfied, no such Losses shall be allocated to a Member which would cause such Member to have an Adjusted Capital Account Deficit at the end of any fiscal year. Any Losses not allocated to a Member due to the foregoing limitation instead shall be allocated to the Members with positive Capital Account balances in proportion to such Capital Account balances until all such Capital Account balances have been reduced to zero. (d) Upon any Terminating Capital Transaction, and after adjusting each Member’s Capital Account for the fiscal year in which such Terminating Capital Transaction occurs for all Capital Contributions and distributions made during such fiscal year, and for all other special allocations made pursuant to Section 4.44.3, below, all Profit and Loss from such Terminating Capital Transaction shall be allocated to the Members’ Capital Accounts in a manner such that, as of the end of such fiscal year, the Capital Account of each Member (which may be either a positive or negative balance) shall equal, as nearly as possible, (a) the amount that would be distributed to such Member in a Hypothetical Liquidation (based on the purchase price associated with such Terminating Capital Transaction) at the end of the last day of such Fiscal Year, minus (b) the sum of (i) such Member’s share of Partnership Minimum Gain (as determined according to Treasury Regulations Sections 1.704-2(d) and (g)(3)) and Partner Nonrecourse Debt Minimum Gain (as determined according to Treasury Regulations Section 1.704-2(i)) and (ii) the amount, if any, such Member is obligated to contribute to the capital of the Company as of the last day of such Fiscal Year, provided, however, that no Loss may be allocated to a Member to the extent such an allocation would result in an Adjusted Capital Account Deficit for such Member. For purposes of the foregoing: