Common use of Distributable Cash Clause in Contracts

Distributable Cash. (a) Except with respect to payments of Tax Liability Distributions (which shall be mandatory to the extent of Distributable Cash, subject to the proviso at the end of this sentence), to the extent the payment of such distributions does not cause a breach under the terms of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(i), when and if to make a distribution of Distributable Cash pursuant to the terms hereof. (b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions of Distributable Cash) shall be distributed among all the Members in accordance with the following order of priority: (i) until there has been a Changeover Event, to the Common Members pro rata among such Members in proportion to their Common Unit Percentage; and (ii) after the occurrence of a Changeover Event: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and (B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage. (c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed pursuant to this Section 5.2(c) shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For purposes of this Agreement, a Common Member’s “Annual Tax Liability” means the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 of the Code allocated to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed to the Members, with such estimates being trued up in connection with the payment of the annual Tax Liability Distribution.

Distributable Cash. (a) Except with respect The Partnership intends from time to payments of Tax Liability Distributions (which shall be mandatory time to the extent make distributions of Distributable Cash, as available and as determined by the General Partner, subject to the proviso at following: (i) the end of this sentence), General Partner shall use commercially reasonable efforts to distribute Distributable Cash to the extent Partners on at least a quarterly basis, subject to any applicable limitations in the Project Documents, (ii) distributions may be restricted or suspended when the General Partner determines in its reasonable judgment that it is in the best interest of the Partnership to do so, (iii) all distributions are subject to the payment of Costs and to the maintenance of reasonable Reserves and (iv) no distribution shall be made if such distribution is prohibited by any of the Project Documents. A Partner receiving a distribution in violation of the foregoing Section 10.1(iv) shall be liable to the Partnership for return of the amount of the distribution without regard to the date of the distribution or the date of the discovery of the violation, whether or not such Partner remains a Partner and without regard to any other facts or circumstances. Subject to the foregoing, except as provided in Section 19.2(d) hereof (relating to distributions does not cause a breach under upon the terms dissolution of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(iPartnership), when and if Section 11.8(b) (relating to make a distribution special allocations of Distributable Cash pursuant while the Tracking Account Loan is outstanding), Section 11.12(b) (relating to the terms hereof. (b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions special allocations of Distributable Cash received in connection with any Niagara Mohawk Proceeding) and Section 11.12(d) (relating to special allocations of Distributable Cash received in connection with the recovery of all or a portion of the Casualty Insurance Claim Receivable), Distributable Cash) , if any, shall be distributed among all the Members in accordance with the following order of priority: (i) until there has been a Changeover Event, to the Common Members pro rata among such Members Partners in proportion to their Common Unit Percentagethen existing Percentage Interests; and (ii) after PROVIDED, HOWEVER, that any Distributable Cash otherwise allocable to one or more of the occurrence of a Changeover Event: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and (B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage. (c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed Partners pursuant to this Section 5.2(c) 10.1 but which is disbursed by the Partnership to a Curing Credit Support Party as a result of, and to the extent of, the outstanding balance of any amounts due to the Curing Credit Support Party on account of a Credit Support Loan under the Credit Support Agreement, as required by Section 11.13 hereof, shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For treated for all purposes of this Agreement, a Common Member’s “Annual Tax Liability” means including for purposes of adjusting the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 respective Capital Accounts of the Code allocated Partners pursuant to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist Section 11.1(b), as having been distributed by the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed Partnership to the MembersPartner or Partners, with such estimates being trued up in connection as the case may be, that are Affiliated with the payment of the annual Tax Liability DistributionCredit Support Defaulting Party.

Distributable Cash. (a) Except with respect to payments of Tax Liability Distributions (which shall be mandatory to the extent of Distributable Cash, subject to the proviso at the end of this sentence), to the extent the payment of such distributions does not cause a breach under the terms of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(i), when and if to make a distribution of Distributable Cash pursuant to the terms hereof. (b) Subject to Section 6.24.1(b), when distributedSection 4.1(c) and Section 4.1(d), all distributions at such times as the Managers determine in their sole discretion, Distributable Cash will be applied by the Company or distributed as follows: (including without limitation, distributions of i) The Class A Distributable Cash) Funds shall be distributed among all the Members as follows and in accordance with the following order of priority: (iA) until there has been a Changeover EventFirst, 100% to the Common Class A Members pro rata among in accordance with their respective Class A Sharing Ratios, until such Members time as Class A Payout occurs; provided that no Class A Member shall receive any distribution pursuant to this Section 4.1(a)(i)(A) in proportion excess of the amount that would cause Class A Payout to their Common Unit Percentageoccur if calculated solely with respect to such Class A Member; and (B) Second, 87% to the Class A Members pro rata in accordance with their respective Class A Sharing Ratios, and 13% to the Participants pro rata in accordance with their respective Class P Sharing Ratios. (ii) after The Class D Distributable Funds shall be distributed among the occurrence Members as follows and in the following order of a Changeover Eventpriority: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect First, 100% to the Preferred Units (Class D Members pro rata in accordance with the ratio of such Adjusted Capital Contributions)their respective Class D Sharing Ratios, until such time as Class D Payout occurs; provided that no Preferred Class D Member has a positive Adjusted Capital Contribution balance shall receive any distribution pursuant to this Section 4.1(a)(ii)(A) in excess of the amount that would cause Class D Payout to occur if calculated solely with respect to the Preferred Units, such Class D Member; and (B) thereafterSecond, 80% to the remainder shall be shall be distributed among the Common Members, Class D Members pro rata among such Members in proportion accordance with their respective Class D Sharing Ratios, and 20% to the Participants pro rata in accordance with their Common Unit Percentagerespective Class P Sharing Ratios. (cb) To Notwithstanding the extent provisions of Section 4.1(a), in the event a Member requests in writing in any Adjustment Period that as the Company make a Tax Distribution to such Member and the Company has a sufficient amount of March 15th of any Allocation Year the aggregate amounts distributed Distributable Cash to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than make such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15thDistribution, the Company shall (may, at the discretion of the Managers, distribute to the extent required pursuant to Section 5.2(a)) make a requesting Member cash distribution (a “Tax Liability Distribution”) to each Common Member in an amount equal to such shortfall. Any amounts distributed pursuant to this Section 5.2(c) shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For purposes of this Agreement, a Common Member’s “Annual Tax Liability” means the amount that is equal to (y) the product of (i) the Assumed Tax Rate and taxable income of the Company for such Adjustment Period allocable to such Member multiplied by (ii) the net taxable incomeTax Rate (the “Tax Distribution”); provided, however, that (A) if the Company makes distributions pursuant to Section 4.1(a) during an Adjustment Period, such distributions shall reduce the amount of Tax Distributions the Company otherwise would be required to make and (B) if the aggregate amounts distributed to any Member for any Adjustment Period pursuant to this Section 4.1(b), including income from by way of advances, exceed the application of Section 704(c) but excluding any gain, loss or deduction resulting from amount the application of Section 743 or Section 754 of the Code allocated Company was obligated to distribute to such Member pursuant to this Section 4.1(b) for such Adjustment Period, the amount of such excess shall be applied to reduce the amount the Company would otherwise be obligated to distribute to such Member pursuant to this Section 4.1(b) for the following Adjustment Period. The Capital Account of any Member to whom a Tax Distribution is made shall be debited accordingly. Amounts distributed under this Section 4.1(b) shall be deemed an advance of distributions under Section 4.1(a). For the avoidance of doubt, holders of Class P Units shall have the same rights as Members holding Class A Units pursuant to this Section 4.1(b). (or its successor-in-interestc) It is the intention of the parties to this Agreement that distributions to any Participant with respect to the Class P Units be limited to the extent necessary so that the related interest constitutes a Profits Interest. In furtherance of the foregoing, and notwithstanding anything to the contrary in this Agreement, the Managers shall, if necessary, limit any distributions to any Participant with respect to its Common Class P Units for so that such Allocation Yeardistributions do not exceed the available profits in respect of such Participant’s related Profits Interest. To assist Available profits shall include the Common Members with any quarterly estimated tax payments that they might owe, aggregate amount of profit and unrealized appreciation in all of the assets of the Company agrees between the date of issuance of such Class P Units and the date of such distribution, it being understood that such unrealized appreciation shall be determined on the basis of the Profits Interest Hurdle applicable to make commercially reasonable efforts such Unit. In the event that a Participant’s distributions and allocations with respect to make quarterly estimates its Class P Units are reduced pursuant to this Section 4.1(c), an amount equal to such excess distributions shall be treated as instead apportioned to the holders of any annual Tax Liability Distribution Class A Units, Class D Units, and Class P Units that have met their Profits Interest Hurdle (such Class P Units, “Qualifying Class P Units”), pro rata in proportion to their aggregate holdings of Class A Units, Class D Units, and Qualifying Class P Units treated as one class of Unit. (d) Notwithstanding the provisions of Section 4.1(a), in the event that prior to a Capital Event Distributable Cash in excess of the Accumulated Net Income of the Company estimates would is distributed, distributions that are in excess of the Accumulated Net Income shall be owed made to the Members (including the Class C Members, with such estimates being trued up in connection with the payment ) as if a conversion of the annual Tax Liability DistributionClass C Units into Class A Units had occurred pursuant to Section 3.4 even if the conversion has not occurred. (e) In the event of a Qualified Public Offering distributions shall be made in accordance with Section 4.8.

Distributable Cash. (a) Except with respect The Partnership intends from time to payments of Tax Liability Distributions (which shall be mandatory time to the extent make distributions of Distributable Cash, as available and as determined by the General Partner, subject to the proviso at following: (i) the end of this sentence), General Partner shall use commercially reasonable efforts to distribute Distributable Cash to the extent Partners on at least a quarterly basis, subject to any applicable limitations in the Project Documents, (ii) distributions may be restricted or suspended when the General Partner determines in its reasonable judgment that it is in the best interest of the Partnership to do so, (iii) all distributions are subject to the payment of Costs and to the maintenance of reasonable Reserves and (iv) no distribution shall be made if such distribution is prohibited by any of the Project Documents. A Partner receiving a distribution in violation of the foregoing Section 10.1(iv) shall be liable to the Partnership for return of the amount of the distribution without regard to the date of the distribution or the date of the discovery of the violation, whether or not such Partner remains a Partner and without regard to any other facts or circumstances. Subject to the foregoing, except as provided in Section 19.2(d) hereof (relating to distributions does not cause a breach under upon the terms dissolution of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(iPartnership), when and if Section 11.8(b) (relating to make a distribution special allocations of Distributable Cash pursuant while the Tracking Account Loan is outstanding), Section 11.12(b) (relating to the terms hereof. (b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions special allocations of Distributable Cash received in connection with any Niagara Mohawk Proceeding), Section 11.12(d) (relating to special allocations of Distributable Cash received in connection with the recovery of all or a portion of the Casualty Insurance Claim Receivable) and Section 11.14 (relating to special allocations of cash relating to TCC Net Revenues or TCC Revenue Shortfall), Distributable Cash) , if any, shall be distributed among all the Members in accordance with the following order of priority: (i) until there has been a Changeover Event, to the Common Members pro rata among such Members Partners in proportion to their Common Unit Percentagethen existing Percentage Interests; and (ii) after PROVIDED, HOWEVER, that any Distributable Cash otherwise allocable to one or more of the occurrence of a Changeover Event: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and (B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage. (c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed Partners pursuant to this Section 5.2(c) 10.1 but which is disbursed by the Partnership to a Curing Credit Support Party as a result of, and to the extent of, the outstanding balance of any amounts due to the Curing Credit Support Party on account of a Credit Support Loan under the Credit Support Agreement, as required by Section 11.13 hereof, shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For treated for all purposes of this Agreement, a Common Member’s “Annual Tax Liability” means including for purposes of adjusting the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 respective Capital Accounts of the Code allocated Partners pursuant to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist Section 11.1(b), as having been distributed by the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed Partnership to the MembersPartner or Partners, with such estimates being trued up in connection as the case may be, that are Affiliated with the payment of the annual Tax Liability DistributionCredit Support Defaulting Party.