Calculation Conventions. The Managing Member shall use the following assumptions and conventions to calculate the Internal Rate of Return: (i) It will assume that each of the Fixed Tax Assumptions is correct, except to the extent a Fixed Tax Assumption is incorrect due to breach of a representation or covenant by Sponsor, any Class B Member, Managing Member or any of their Affiliates in the Transaction Documents. In all other respects, Tax Credits and taxable income and loss of the Company for any taxable period will be calculated based on the amounts actually allocated in accordance with the federal income tax accounting methods and tax elections actually used with respect to such period by the Company in the preparation of its federal income tax reports and returns, or as adjusted on any amended return or as a result of a federal income tax audit of the Company or the Class A Member; provided however, any adverse tax results (including any recapture, loss or disallowance of all or a portion of a Tax Credit) will be ignored for purposes of such calculation if caused by (A) the breach of a representation or covenant by the Class A Member in this Agreement, (B) the Class A Member taking a position on any Tax Return that is inconsistent with the Company Tax Returns unless in the opinion of nationally recognized tax counsel selected by the Class A Member and reasonably acceptable to the Class B Member the position taken by the Class A Member is more likely than not correct, or (C) a Transfer by the Class A Member of all or a portion of its Membership Interest. Notwithstanding anything in this Agreement to the contrary, the calculation of Tax Credits and taxable income and loss will not take into account Section 199 of the Code. (ii) Each Class A Member will be assumed to have owned its Membership Interest since the Effective Date. (iii) The taxable income and loss of the Company will be treated as earned ratably during the Fiscal Year or other period with the result that the Taxes on such income, gain or benefit from the losses allocated to the Class A Members will be treated as having been paid or received in four equal installments on the respective estimated tax payment dates for a December 31 corporate taxpayer during the Fiscal Year or other period, except that Tax Credits for placing in service any Projects during a Fiscal Year or other period will be treated as earned on the last day of the Quarter in which Tax Credit is actually earned and except that, in the Fiscal Year or other period in which the Flip Date occurs, the taxable income or loss allocated to the Class A Member for the Pre-Flip Period will be allocated ratably to each of the four estimated tax payment dates during the Fiscal Year or other period, and the post-Flip Date amounts will be treated similarly.
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Samples: Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.)
Calculation Conventions. The Managing Member shall will use the following assumptions and conventions to calculate the Internal Rate of Return:
(i) It will assume that each of the Fixed Tax Assumptions is are correct, except to the extent unless they are incorrect as a Fixed Tax Assumption is incorrect due to result of breach of a representation or covenant by Sponsor, any the Class B A Member, Managing Member or any of their Affiliates in the Transaction Documents. In all other respects, Tax Credits and taxable income and loss of the Company for any taxable period will be calculated based on the amounts actually allocated in accordance with the federal income tax accounting methods and tax elections actually used with respect to such period by the Company in the preparation of its federal income tax reports and returns, or as adjusted on any amended return or as a result of a federal income tax audit of the Company or the Class A Member; provided howeveraudit, and taking into account any adverse tax results (including any recapture, loss or disallowance of all or a portion of a Tax Credit) will be ignored for purposes of such calculation if caused by (A) the breach of a representation or covenant by the Class A Member in this Agreement, (B) the Class A Member taking a position on any Tax Return that is inconsistent with the Company Tax Returns unless change in the opinion of nationally recognized tax counsel selected by the Class A Member and reasonably acceptable to the Class B Member the position taken by the Class A Member is more likely than not correct, or (C) a Transfer by the Class A Member of all or a portion of its Membership InterestSection 45 reference price. Notwithstanding anything in this Agreement to the contrary, the calculation of Tax Credits and taxable income and loss will not take into account Section 199 of the Code.
(ii) Each Class A B Member will be assumed to have owned its Membership Interest since the Effective Date.
(iii) The Tax Credits and taxable income and loss of the Company will be treated as earned ratably during the Fiscal Year or other period with the result that the Taxes on such income, gain or benefit from the Tax Credits or losses allocated to the Class A B Members will be treated as having been paid or received in four equal installments on the respective estimated tax payment dates for a December 31 calendar year corporate taxpayer during the Fiscal Year or other periodYear, except that Tax Credits for placing in service any Projects during a Fiscal Year or other period will be treated as earned on the last day of the Quarter in which Tax Credit is actually earned and except that, in the Fiscal Year or other period in which the Flip Date occurs, the Tax Credits and taxable income or loss allocated to the Class A Member B Members for the Pre-Flip Period will be allocated ratably to each of the four estimated tax payment dates during the Fiscal Year or other periodYear, and the post-Flip Date amounts will be treated similarly.
(iv) Tax savings and tax detriment will be calculated using a 35% tax rate.
(v) Each Class B Member will be treated as able to use immediately, subject to the same timing described in clause (iii), and fully the tax benefits it is allocated by the Company.
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Samples: Limited Liability Company Agreement (First Wind Holdings Inc.), Limited Liability Company Agreement (First Wind Holdings Inc.)