Determinations by the Manager. Except as may otherwise be required by law, the determination as to any of the following matters, made in good faith by or pursuant to the direction of the Manager consistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and every holder of Shares: the amount of the net income of the Company for any period and the amount of assets at any time legally available for the payment of distributions or redemption of Shares; the amount of paid-in surplus, net assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in excess of capital, undivided profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any class or series of Shares; the fair value, or any sale, bid or asked price to be applied in determining the fair value of any asset owned or held by the Company or of any Shares; the number of Shares of any class or series of the Company; any matter relating to the acquisition, holding and disposition of any assets by the Company; the evaluation of any competing interests among the Company and its Affiliates and the resolution of any such conflicts of interests; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager.
Determinations by the Manager. Except as may otherwise be required by law, the determination as to any of the following matters, made in good faith by or pursuant to the direction of the Manager consistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and every holder of Units: the amount of the net income of the Company for any period and the amount of assets at any time legally available for the payment of distributions; the amount of paid-in surplus, net assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in excess of capital, undivided profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); any matter relating to the acquisition, holding and disposition of any assets by the Company; the evaluation of any competing interests among the Company and its Affiliates and the resolution of any such conflicts of interests; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager.
Determinations by the Manager. In furtherance of the authority granted to the Manager pursuant to Section 5.1 of this Agreement, the determination as to any of the following matters, made in good faith by or pursuant to the direction of the Manager in a manner not inconsistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and each Series and every holder of Interests:
(a) the amount of Free Cash Flow of any Series for any period and the amount of assets at any time legally available for the payment of distributions on Interests of any Series;
(b) the amount of paid in surplus, net assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in excess of capital, undivided profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged);
(c) any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any Series;
(d) the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by any Series or of any Interests;
(e) the number of Units within a Series;
(f) any matter relating to the acquisition, holding, managing, and disposition of any assets, including Series Assets, by any Series;
(g) the evaluation of any competing interests among the Series and the resolution of any conflicts of interests among the Series;
(h) each of the matters set forth in Section 5.1; or
(i) any other matter relating to the business and affairs of the Company, any Series, or any Series Asset, or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager.
Determinations by the Manager. Except as may otherwise be required by law or this Agreement, the determination as to any of the following matters, made in good faith by or pursuant to the direction of the Manager consistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and every holder of Shares: the amount of the net income or net loss of the Company for any period and the amount of assets at any time legally available for the payment of distributions or redemption of Shares; the amount of paid-in surplus, net assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in excess of capital, undivided profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the manner in which allocations are made among the Members; any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any class or series of Shares; the fair value, or any sale, bid or asked price to be applied in determining the fair value of any asset owned or held by the Company or of any Shares; the number of Shares of any class or series of the Company; any matter relating to the acquisition, holding and disposition of any assets by the Company; the evaluation of any competing interests among the Company and its Affiliates and the resolution of any such conflicts of interests; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager.
Determinations by the Manager. In furtherance of the authority granted to the Manager pursuant to Sections 5.3(a) and (b) above, the determination as to matters made in good faith by or pursuant to the direction of the Manager consistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and each Series and every holder of Membership Interests, which matter include but are not limited to:
i. the amount of excess distributable cash of any Series for any period and the amount of assets at any time legally available for the payment of distributions on Membership Interests of any Series;
ii. the fair value, or any sale, bid, or price to be applied in determining the fair value, of any asset owned or held by any Series or of any Membership Interests;
iii. any matter relating to the acquisition, holding, and disposition of any assets by any Series;
iv. the adoption, amendment, and repeal of the Allocation Policy;
v. the evaluation of any competing interests among the Series and the resolution of any conflicts of interests among the Series;
vi. any other matter relating to the business and affairs of the Company or any Series or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager; and
vii. the determination of the Net Asset Value of Membership Interests, which shall be made in accordance with the Memorandum and relevant Series Offering Statement.
Determinations by the Manager. The determination as to any of the following matters by the Manager consistent with the Act and this Agreement shall be final and conclusive and shall be binding upon the Company and every Member: the form, amount and timing of any distribution; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any capital account of any holder of an Economic Interest; the amount of profit, loss or depreciation for any period; the value of any property of the Company; any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to allocations and distributions, qualifications or terms or conditions of redemption of any Person’s interest in the Company; any matter relating to the acquisition, holding and disposition of any property of the Company; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Manager.
Determinations by the Manager. Unless otherwise expressly specified in the Agreement, any determinations, decisions, consent, vote or judgment of, or exercise of discretion by, or action taken or omitted to be taken by the Manager under this Agreement shall be made, given, exercised, taken or omitted as the Manager shall determine in its sole and absolute discretion. In connection with the foregoing, the Manager shall be entitled to consider such interests and factors as the Manager deems appropriate, including its own interests and/or the interests of the KB Group to the exclusion of all other considerations. THE SIGNATURES OF THE MEMBERS ARE SET FORTH ON THE ATTACHED COUNTERPART SIGNATURE PAGES. OPERATING AGREEMENT OF _____________, LLC
