Common use of Allocations of Net Income and Net Loss Clause in Contracts

Allocations of Net Income and Net Loss. (i) Subject to Section 4.1(iii), for each Fiscal Year (or portion thereof), except as otherwise provided in this Agreement, Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated among the Members in a manner such that that would result in positive Capital Account balances equal to all amounts required to be distributed pursuant to Section 9.2 in the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable to the Members under Section 9.2 upon a hypothetical liquidation, the hypothetical distribution to each Member shall be equal to the amount that would be received by such Member if all Company assets were sold on the last day of the allocation period for cash equal to their basis for Capital Account purposes (provided, however, that the Company may increase or decrease Capital Accounts in accordance with applicable Treasury Regulations to reflect any revaluations of the Company’s property, including any write-downs in the amount thereof), all Company liabilities were satisfied to the extent required by their terms (limited, with respect to each “partner nonrecourse liability” and “partner nonrecourse debt”, as defined in Treasury Regulations Section 1.704-2(b)(4), to the fair market value of the assets securing such liability), and the net assets of the Company were distributed in full to the Members all as of the last day of such allocation period in accordance with Section 5.2 hereof. (ii) The parties intend that the allocation provisions of this Section 4.1 shall produce Capital Account balances of the Members that will be consistent with the distribution provisions of Section 5.2 and the liquidation provisions of Section 9.2(c). Notwithstanding anything to the contrary in this Agreement, to the extent the Manager determines that the allocation provisions of this Section 4.1 may fail to produce such Capital Account balances, (i) such provisions shall be amended by the Manager to the extent necessary to produce such result; and (ii) Net Income and Net Loss and other items of income, gain, loss, credit and deduction of the Company for the most recent open year (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures of the Company for such years) shall be reallocated among the Members to the extent it is not possible to achieve such results with allocations of Net Income and Net Loss (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future years, as determined by the Board. This Section 4.1(i) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authority.

Allocations of Net Income and Net Loss. (iAfter giving effect to the special allocations set forth in Section 6.4 hereof, of Net Income, Net Loss or items thereof required by Code Section 704(b) Subject to Section 4.1(iii), for each Fiscal Year (or portion thereof), except as otherwise provided in this Agreementand the Treasury Regulations promulgated thereunder, Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated among to the Members in a manner such that that would result in positive Capital Account balances equal to all amounts required to the following priority and manner: (a) Net Income shall be distributed pursuant to Section 9.2 in the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable allocated to the Members in the following order of priority: (i) First, to any Member allocated Net Loss under Section 9.2 upon a hypothetical liquidation6.1(b) that could not be allocated to another Member due to the limitations contained in the proviso in Section 6.1(b), the hypothetical distribution to each Member shall be an amount equal to the amount that would be received by of such Member if all Company assets were sold on Net Loss; (ii) Thereafter, to the last day Members, pro rata, in proportion to their respective Ownership Percentages, subject, in the case of the allocation period for cash equal Class B Membership Units, to the provisions of Section 2.1(b)(ii). (b) Net Loss shall be allocated to the Members pro rata, in proportion to their basis for Capital Account purposes (respective Ownership Percentages, subject, in the case of the Class B Membership Units, to the provisions of Section 2.1(b)(ii), provided, however, that the Company may increase or decrease any allocations of Net Loss which would cause a Member to have an Adjusted Capital Accounts in accordance with applicable Treasury Regulations to reflect any revaluations of the Company’s property, including any write-downs in the amount thereof), all Company liabilities were satisfied Account Deficit shall be applied proportionally to the extent required by their terms other Members so as to allocate the maximum amount of Net Loss to such Members without causing any Member to have an Adjusted Capital Account Deficit. (limitedc) For purposes of this Agreement, “Adjusted Capital Account Deficit” shall mean, with respect to each “partner nonrecourse liability” any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments: (i) credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulations Sections 1.704-2(g)(1) and “partner nonrecourse debt”1.704-2(i)(5); and (ii) debit to such Capital Account the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), as defined in 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-2(b)(4), to the fair market value of the assets securing such liability), 1(b)(2)(ii)(d) and the net assets of the Company were distributed in full to the Members all as of the last day of such allocation period in accordance with Section 5.2 hereof. (ii) The parties intend that the allocation provisions of this Section 4.1 shall produce Capital Account balances of the Members that will be consistent with the distribution provisions of Section 5.2 and the liquidation provisions of Section 9.2(c). Notwithstanding anything to the contrary in this Agreement, to the extent the Manager determines that the allocation provisions of this Section 4.1 may fail to produce such Capital Account balances, (i) such provisions shall be amended by the Manager to the extent necessary to produce such result; and (ii) Net Income and Net Loss and other items of income, gain, loss, credit and deduction of the Company for the most recent open year (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures of the Company for such years) shall be reallocated among the Members to the extent it is not possible to achieve such results with allocations of Net Income and Net Loss (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future years, as determined by the Board. This Section 4.1(i) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authorityinterpreted consistently therewith.

Allocations of Net Income and Net Loss. (iAfter giving effect to the special allocations set forth in Section 6.4 hereof, of Net Income, Net Loss or items thereof required by Code Section 704(b) Subject to Section 4.1(iii), for each Fiscal Year (or portion thereof), except as otherwise provided in this Agreementand the Treasury Regulations promulgated thereunder, Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated among to the Members in a manner such that that would result in positive Capital Account balances equal to all amounts required to the following priority and manner: (a) Net Income shall be distributed pursuant to Section 9.2 in the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable allocated to the Members in the following order of priority: (i) First, to any Member allocated Net Loss under Section 9.2 upon a hypothetical liquidation6.1(b) that could not be allocated to another Member due to the limitations contained in the proviso in Section 6.1(b), the hypothetical distribution to each Member shall be an amount equal to the amount that would be received by of such Member if all Company assets were sold on Net Loss; (ii) Thereafter, to the last day Members, pro rata, in proportion to their respective Ownership Percentages, subject, in the case of the allocation period for cash equal Class B Membership Units, to the provisions of Section 2.1(b)(ii). .. (b) Net Loss shall be allocated to the Members pro rata, in proportion to their basis for Capital Account purposes (respective Ownership Percentages, subject, in the case of the Class B Membership Units, to the provisions of Section 2.1(b)(ii), provided, however, that the Company may increase or decrease any allocations of Net Loss which would cause a Member to have an Adjusted Capital Accounts in accordance with applicable Treasury Regulations to reflect any revaluations of the Company’s property, including any write-downs in the amount thereof), all Company liabilities were satisfied Account Deficit shall be applied proportionally to the extent required by their terms other Members so as to allocate the maximum amount of Net Loss to such Members without causing any Member to have an Adjusted Capital Account Deficit. (limitedc) For purposes of this Agreement, “Adjusted Capital Account Deficit” shall mean, with respect to each “partner nonrecourse liability” any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments: (i) credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulations Sections 1.704-2(g)(1) and “partner nonrecourse debt”1.704-2(i)(5); and (ii) debit to such Capital Account the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), as defined in 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulations Section 1.704-2(b)(4), to the fair market value of the assets securing such liability), 1(b)(2)(ii)(d) and the net assets of the Company were distributed in full to the Members all as of the last day of such allocation period in accordance with Section 5.2 hereof. (ii) The parties intend that the allocation provisions of this Section 4.1 shall produce Capital Account balances of the Members that will be consistent with the distribution provisions of Section 5.2 and the liquidation provisions of Section 9.2(c). Notwithstanding anything to the contrary in this Agreement, to the extent the Manager determines that the allocation provisions of this Section 4.1 may fail to produce such Capital Account balances, (i) such provisions shall be amended by the Manager to the extent necessary to produce such result; and (ii) Net Income and Net Loss and other items of income, gain, loss, credit and deduction of the Company for the most recent open year (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures of the Company for such years) shall be reallocated among the Members to the extent it is not possible to achieve such results with allocations of Net Income and Net Loss (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future years, as determined by the Board. This Section 4.1(i) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authorityinterpreted consistently therewith.

Allocations of Net Income and Net Loss. (ia) Subject After giving effect to Section 4.1(iii), for each Fiscal Year (or portion thereof), except as otherwise provided the special allocations set forth in this AgreementSections 4.2 and 4.8, Net Income and Income, Net Loss (and, to the extent necessary, individual items of income, gain, loss loss, deduction and credit, for any Fiscal Year or deduction) of the Company other relevant period shall be allocated among the Members in a manner such that the Adjusted Capital Account of each Member immediately after such allocation is, as nearly as possible, equal (proportionately) to the distributions that would result in positive Capital Account balances equal be made to all amounts required to be distributed such Member pursuant to Section 9.2 in 10.2 if the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable to the Members under Section 9.2 upon a hypothetical liquidationCompany were dissolved, the hypothetical distribution to each Member shall be equal to the amount that would be received by such Member if all Company its affairs wound up and its assets were sold on the last day of the allocation period for cash equal to their basis for Capital Account purposes (provided, however, that the Company may increase or decrease Capital Accounts in accordance with applicable Treasury Regulations to reflect any revaluations of the Company’s property, including any write-downs in the amount thereof)Book Value, all Company liabilities were satisfied to the extent required by their terms (limited, limited with respect to each “partner nonrecourse liability” and “partner nonrecourse debt”, as defined in Treasury Regulations Section 1.704-2(b)(4), Nonrecourse Liability to the fair market value Book Value of the assets asset securing such liability), and the net assets of the Company were distributed in full accordance with Section 10.2 immediately after such allocation, less such Member’s share of Company Minimum Gain and Member Minimum Gain. (b) Except as required by the Code and the Treasury Regulations, any allocation of Net Loss pursuant to Section 4.1(a) shall not exceed the maximum amount of Net Loss that can be so allocated without causing such Member to have an Adjusted Capital Account deficit at the end of the Fiscal Year. In the event that some but not all of the Members would have Adjusted Capital Account deficits (or an increase in any existing Adjusted Capital Account deficit) as a result of an allocation of Net Loss pursuant to Section 4.1(a), the limitation set forth in this Section 4.1(b) shall be applied on a Member-by-Member basis and any Net Loss not allocable to any Member as a result of such limitation shall be allocated to the other Members all as of the last day of such allocation period in accordance with Section 5.2 hereof. (ii) The parties intend that the allocation provisions of this Section 4.1 shall produce positive balances in such other Members’ respective Capital Account balances of Accounts so as to allocate the Members that will be consistent with the distribution provisions of Section 5.2 and the liquidation provisions of Section 9.2(c). Notwithstanding anything to the contrary in this Agreement, to the extent the Manager determines that the allocation provisions of this Section 4.1 may fail to produce such Capital Account balances, (i) such provisions shall be amended by the Manager to the extent necessary to produce such result; and (ii) Net Income and maximum permissible Net Loss and other items of income, gain, loss, credit and deduction of the Company for the most recent open year (or items of income, gain, loss, deduction, and Code to each Member under Regulations Section 705(a)(2)(B) expenditures of the Company for such years) shall be reallocated among the Members to the extent it is not possible to achieve such results with allocations of Net Income and Net Loss (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future years, as determined by the Board. This Section 4.1(i) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authority1.704-1(b)(2)(ii)(d).

Allocations of Net Income and Net Loss. (ia) Subject After giving effect to the Regulatory Allocations required under Section 3.9 hereof and subject to Section 4.1(iii), for each Fiscal Year (or portion thereof), except as otherwise provided in this Agreement3.7 hereof, Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss for each Company Year or deduction) of the Company other accounting period shall be allocated among the Members in a manner such that that would result in positive will, as nearly as possible, cause the Capital Account balances balance of each such Member at the end of such accounting period to equal to all amounts required to be distributed pursuant to Section 9.2 in the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable to the Members under Section 9.2 upon a hypothetical liquidation, the hypothetical distribution to each Member shall be equal to the amount distribution, if any, that would be received by such Member if all Company assets were sold would receive if, on the last day of such period: (i) all of the allocation period Company’s assets, including cash, were sold for cash equal to their basis book values (as determined for Capital Account purposes (provided, however, that the Company may increase or decrease of maintaining Capital Accounts in accordance with applicable Treasury Regulations Section 3.4 hereof), taking into account any adjustments thereto for such period, including pursuant to reflect any revaluations Section 3.4(b) hereof; (ii) all Company liabilities reflected on the face of the Company’s property, including any write-downs in the amount thereof), all Company liabilities balance sheet were satisfied in cash according to the extent required by their terms (limited, with respect to each “partner nonrecourse liability” and “partner nonrecourse debt”, as defined in Treasury Regulations Section 1.704-2(b)(4), to the fair market book value (as so determined) of the Company assets securing such liability), ; and (iii) the net assets of the Company remaining proceeds thereof were distributed in full to the Members all as proceeds upon dissolution in the order of priority described in Section 4.3 hereof. For purposes of determining the amounts described in clause (iii) above, the provisions of Section 3.8(c) shall apply. For purposes of determining Capital Accounts under this Section 3.5(a), (x) Capital Accounts shall first be reduced by any distributions during such period other than distributions pursuant to Article 4 hereof, and (y) a Member’s Capital Account balance shall be deemed to be increased by such Member’s Permissible Capital Account Deficit (as such term is defined in Section 3.9(c) hereof), if any, determined as of the last day end of such allocation period in accordance with Section 5.2 hereofaccounting period. (iib) The parties Members intend that the allocation provisions of this Section 4.1 shall Agreement will produce final Capital Account balances of the Members that will be consistent with the distribution provisions of Section 5.2 and the liquidation provisions of Section 9.2(c). Notwithstanding anything equal to the contrary in this Agreement, amount that would be distributable to the extent Members upon dissolution of the Manager determines that the Company pursuant to Section 4.3 hereof. If such allocation provisions of this Section 4.1 may would fail to produce such final Capital Account balances, , (i) such allocation provisions shall may be amended by the Manager in its sole discretion if and to the extent necessary to produce such result; result and (ii) if the Manager deems it advisable in its sole discretion, the Manager shall be entitled to require Net Income and Net Loss and other (or items of gross income, gain, lossloss and deduction, credit and deduction of if necessary) for prior Company Years with respect to which the Company for the most recent open year (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures of the Company for such years) shall all affected Members would then be entitled to file an amended tax return to be reallocated among the Members to the extent it is not possible to achieve such results result with allocations of Net Income and Net Loss (or such items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future yearsCompany Years, as determined by the BoardManager. This Section 4.1(i3.5(b) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authority.

Allocations of Net Income and Net Loss. (ia) Subject to Section 4.1(iii4.1(c), for each Fiscal Year (or portion thereof), except as otherwise provided in this Agreement, Net Income and Net Loss (and, to the extent necessary, individual items of income, gain, loss or deduction) of the Company shall be allocated among the Members in a manner such that that would result in positive Capital Account balances equal to all amounts required to be distributed pursuant to Section 9.2 in the manner provided therein on a hypothetical liquidation of the Company. In determining the amounts distributable to the Members under Section 9.2 upon a hypothetical liquidation, the hypothetical distribution to each Member shall be equal to the amount that would be received by such Member if all Company assets were sold on the last day of the allocation period for cash equal to their basis for Capital Account purposes (provided, however, that the Company may increase or decrease Capital Accounts in accordance with applicable Treasury Regulations to reflect any revaluations of the Company’s property, including any write-downs in the amount thereof), all Company liabilities were satisfied to the extent required by their terms (limited, with respect to each “"partner nonrecourse liability” " and “"partner nonrecourse debt”, ," as defined in Treasury Regulations Section 1.704-2(b)(4), to the fair market value of the assets securing such liability), and the net assets of the Company were distributed in full to the Members all as of the last day of such allocation period in accordance with Section 5.2 9.2 hereof. (iib) The parties intend that the allocation provisions of this Section 4.1 shall produce Capital Account balances of the Members that will be consistent with the distribution provisions of Section 5.2 Article 5 and the liquidation provisions of Section 9.2(c)9.2. Notwithstanding anything to the contrary in this Agreement, to the extent the Manager Board determines that the allocation provisions of this Section 4.1 may fail to produce such Capital Account balances, (i) such provisions shall be amended by the Manager Board to the extent necessary to produce such result; result and (ii) Net Income and Net Loss and other items of income, gain, loss, credit and deduction of the Company for the most recent open year (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures of the Company for such years) shall be reallocated among the Members to the extent it is not possible to achieve such results with allocations of Net Income and Net Loss (or items of income, gain, loss, deduction, and Code Section 705(a)(2)(B) expenditures) for the current year and future years, as determined by the Board. This Section 4.1(i4.1(a) shall control notwithstanding any reallocation or adjustment of taxable income, taxable loss, or items thereof by the Internal Revenue Service or any other taxing authority.