Curative Flip Allocations. If, after filing the federal income Tax Return for the year in which the Company treated the Target Internal Rate of Return as having been achieved, there is a change in the taxable income or loss or Tax Credits the Company reported for the period through the end of the month in which the Target Internal Rate of Return was assumed to have been achieved for reasons other than inaccuracy of the Fixed Tax Assumptions (unless they are 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) or the calculation assumptions and conventions in Section 6.5(c) and the Company has not yet made liquidating distributions under Section 10.2, then there will be a “Curative Flip Allocation.” The Managing Member will determine the difference between the Target Internal Rate of Return and the Internal Rate of Return the Class A Members actually achieved through the last Distribution Date the Company distributed cash under Section 6.1(a)(i). The sharing percentages in Section 6.1 will be adjusted for subsequent distributions to the maximum extent necessary to increase or decrease (as appropriate) the Class A Members’ Internal Rate of Return to the Target Internal Rate of Return as of such date. Such change in sharing percentages will remain in effect until, and to the extent necessary so that, the difference between the Target Internal Rate of Return and the actual Internal Rate of Return is eliminated. The Internal Rate of Return the Class A Members actually achieved will be calculated using the Fixed Tax Assumptions (unless they are 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) and the calculation assumptions and conventions in Section 6.5(c). If an event occurs that would have triggered a Curative Flip Allocation but for the fact that the Class B Members have already purchased the Membership Interests of the Class A Members under Section 9.4 of this Agreement or but for the fact that the Company has liquidated, then, as appropriate, the Class B Members will pay in cash, within thirty (30) calendar days after such event, the economic equivalent of the Curative Flip Allocation as additional purchase price for the Class A Membership Interests, or the Class A Members will pay in cash, within thirty (30) calendar days after such event, the economic equivalent of...
Curative Flip Allocations. (A) The Managing Member’s determination that the Flip Point has occurred, subject to the rights of the Class A Members to dispute such determination in advance under the procedures set forth in Section 11.03 and subject to any adjustment provided for in Section 5.06(b)(vi), shall become final on the Distribution Date or Liquidation Date as of which such determination is made, in the absence of fraud or manifest mathematical error. Except as provided for in Section 5.06(b)(vi), the occurrence of the Flip Point shall not be affected by any Tax Costs or Tax Benefits, distribution or other event or circumstance arising at any time after the Distribution Date or Liquidation Date as of which such determination is made. If, subsequent to the filing of the Company’s Tax Return for the taxable year in which the Flip Point is deemed to have occurred, there occurs an adjustment to the Tax Costs or Tax Benefits taken into account in calculating the Flip Point as a result of a change in the amount of any item of income, gain, deduction, loss or credit realized in any period through the end of the calendar month immediately preceding the Distribution Date for which such determination is made, such change shall give rise to a Curative Flip Allocation under this Section 5.06(b)(vii)(A). Except with respect to the Fixed Tax Assumptions and other assumptions made under Section 5.06(b)(iv), the adjustments taken into account under this Section 5.06(b)(vii)(A) shall include a difference in the calculation of taxable income, gain, loss or credit in the Tax Return as filed by the Company, and any amended return or as a result of a federal income tax audit or subsequent administrative or judicial proceeding. No adjustment shall be taken into account as a result of a change, subsequent to the Liquidation Date, in the amount of any item of income, gain, deduction, loss or credit.
Curative Flip Allocations. If, after filing the Tax Return for the Tax Year in which the Flip Date was determined to have occurred, there is change in the distributive share of Company items reported for the period through such Flip Date for reasons other than as the result of the application of the provisions of Section 7.11(c) or the calculation assumptions and conventions in this Section 7.11, and the Company has not yet made liquidating distributions under Section 10.2, then the following curative allocations, distributions and payments will apply and be effected by the Parties (the “Curative Flip Allocation”). The Managing Member will promptly determine the shortfall between the Internal Rate of Return actually achieved through the last Distribution Date that the Company distributed Distributable Cash under Section 6.1(a)(i) or (ii), as applicable, and the Target Internal Rate of Return. The sharing percentages in Section 5.1(c) and Section 6.1(a)(iii) then will be adjusted for allocations and distributions to be made subsequent to those relating to such last Distribution Date to the maximum extent and for so long as is necessary to eliminate such shortfall between the Internal Rate of Return actually achieved through the last Distribution Date that the Company distributed Distributable Cash under Section 6.1(a)(i) or (ii), as applicable, and the Target Internal Rate of Return (subject to the limit that the aggregate sharing percentages for the Class B Members shall not be less than five percent (5%) and the aggregate sharing percentages for the Class A Members shall not be less than one percent (1%)). If an event occurs that would have triggered a Curative Flip Allocation but for the fact that a Class A Member has already purchased the Class B Interests pursuant to Section 9.6 or Section 9.7, then such Class A Member will pay in cash, within twenty (20) Business Days following the occurrence of such event, the economic equivalent of the Curative Flip Allocation as additional purchase price for the Class B Interests.
Curative Flip Allocations. If, after filing the United States federal income Tax return for the year in which the Manager concluded that the Calculated Amount equaled zero, there is a change in the items of taxable income, loss, gain, credit and deduction the Company reported, for the period through the end of the month in which the Flip Date was assumed to have occurred for reasons other than inaccuracy of the Tax Assumptions (unless they are incorrect as a result of breach of a representation or covenant by a Member) or the calculation assumptions and conventions in Section 4.8(c), and the Company has not yet made liquidating distributions under Section 9.2, then there will be a “Curative Flip Allocation.” The Manager shall determine the amount by which the Calculated Amount is greater than zero through the date the Company made a Distribution under Section 4.1. The Distributions made pursuant to Section 4.1(b)(ii) will be adjusted for subsequent allocations and distributions to the maximum extent necessary to cause the Calculated Amount to equal zero. Such change in the Distributions made pursuant to Section 4.1(b)(ii) shall remain in effect until, and to the extent necessary so that, the Calculated Amount shall equal zero. The Calculated Amount will be calculated using the Tax Assumptions (unless they are incorrect as a result of breach of a representation or covenant a Member) and the calculation assumptions and conventions in Section 4.8(c).
