Common use of Distributions of Available Cash Flow Clause in Contracts

Distributions of Available Cash Flow. Subject to Article Two of the Equity Capital Contribution Agreement and Section 10.2(a)(iv) and (v), Available Cash Flow shall be distributed for each Semi-Annual Period to the Members, in the following order and priority: (a) Subject to Sections 5.1(c), prior to the Class A Flip Point: (i) First, to the Class B Members pro rata in accordance with their respective Class B Units until they have received cumulative distributions under this Section 5.1(a)(i) for all periods on or prior to the Class A Flip Point, equal to the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.4(f) herein); (ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(a)(ii) for all periods on or prior to the Class A Flip Point equal to 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company; and (iii) Thereafter, to the Class B Members pro rata in accordance with their respective Class B Units. (b) Subject to Sections 5.1(c), on and after the Class A Flip Point: (i) First, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages, until the Class B Members have received cumulative distributions under Section 5.1(a)(i) and this Section 5.1(b)(i) for all periods equal to the difference between the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.2(e) herein); (ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(b)(ii) and Section 5.1(a)(ii) for all periods equal the greater of (A) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company, and (B) the Minimum Profits Distribution Amount; and (iii) Thereafter, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages. Provided, notwithstanding anything to the contrary in the foregoing Section 5.1(a) or (b), the Company shall accrue as a guaranteed payment for capital, and pay on each Distribution Date, prior to making any distribution pursuant to Sections 5.1(a) or (b), any balance of accrued but unpaid Preferred Distributions for prior periods, and, second, the Preferred Distribution that accrued for the current period, in each case to the Class A Members, pro rata, in proportion to their respective Class A Units for the relevant period. (c) If the aggregate Capital Contributions made by the Class A Member on a True Up Funding Date exceed the applicable Investor Contribution Amount, then 100% of Available Cash Flow shall be distributed 100% to the Class A Member until the Class A Member has received cumulative Available Cash Flow pursuant to this Section 5.1(c) equal to such excess.

Distributions of Available Cash Flow. Subject to Article Two of the Equity Capital Contribution Agreement Section 7.03(d), Section 7.03(g) and Section 10.2(a)(iv) and (v7.03(h), at such times and in such amounts as the Board, in its sole discretion acting unanimously, shall determine, distributions of Available Cash Flow shall be distributed for each Semi-Annual Period made to the Members, Members in the following order and of priority: (a) Subject to Sections 5.1(c), prior to the Class A Flip Point: (i) First, if an RP Election applies to such distribution and the Class P Members make an RP Election in connection with such distribution in accordance with Annex A, to the Class B Members P Members, in respect of each Class P Unit, on a pro rata basis based on the number of Class P Units held by each Class P Member, the Unreturned Preferred Return in respect of each such Class P Unit, until cumulative distributions have been made in respect of each such Class P Unit pursuant to this Section 7.03(b)(i), Section 4.03(c)(i) (including pursuant to Section 13.02) and/or (without duplication) Section 7.03(d) in an amount equal to the lesser of (A) such Class P Unit’s Unreturned Preferred Return and (B) the maximum amount distributable in respect of such Class P Unit in accordance with their respective the Gross Income Principle (it being understood that if any such Class B Units until they have P Unit has received cumulative aggregate distributions under equal to such lesser amount of the amounts described in the foregoing clauses (A) and (B), then no further distributions shall be made in respect of such Class P Unit pursuant to this Section 5.1(a)(i4.03(b)(i) for all periods on or prior Section 4.03(c)(i) (including pursuant to Section 10.02) unless and until the Class A Flip Point, amount equal to the aggregate amount lesser of the Capital Contributions made by amounts described in the Class B Members on or prior foregoing clauses (A) and (B) exceeds the amount to distributed) unless and until the Distribution Date, minus their shares of the downward basis adjustments Unreturned Preferred Return in respect of their allocation such Class P Unit is in excess of basis zero dollars), subject to the deemed redemption contemplated by virtue of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(jthe penultimate paragraph of Section 10(a) (as provided in Section 4.4(f) herein)of Annex A hereto; (ii) Second, if an RP Election applies to such distribution and the Class P Members make an RP Election in connection with such distribution in accordance with Annex A, (1) First, to the Class A Members P Members, in respect of each Class P Unit, on a pro rata basis based on the number of Class P Units held by each Class P Member, the Unreturned Preferred Purchase Price in respect of each such Class P Unit, until cumulative distributions have been made in respect of each such Class P Unit pursuant to this Section 7.03(b)(ii)(1), Section 4.03(c)(ii)(1) (including pursuant to Section 13.02) and/or (without duplication) Section 7.03(d) in an amount equal to such Class P Unit’s Unreturned Preferred Purchase Price (it being understood that if any such Class P Unit has received aggregate distributions totaling its Preferred Purchase Price, no further distributions shall be made in respect of such Class P Unit pursuant to this Section 7.03(b)(ii)(1) or Section 4.03(c)(ii)(1) (including pursuant to Section 13.02)), subject to the deemed redemption contemplated by virtue of the penultimate paragraph of Section 10(a) of Annex A hereto; and (2) Second, to the Class P Members, in respect of each Class P Unit, on a pro rata basis based on the number of Class P Units held by each Class P Member, the Unreturned Preferred Discount in respect of each such Class P Unit, until cumulative distributions have been made in respect of each such Class P Unit pursuant to this Section 4.03(b)(ii)(2), Section 4.03(c)(ii)(2) (including pursuant to Section 13.02) and/or (without duplication) Section 7.03(d) in an amount equal to the lesser of (A) such Class P Unit’s Unreturned Preferred Discount and (B) the maximum amount distributable in respect of such Class P Unit in accordance with their respective the Gross Income Principle (it being understood that if any such Class A UnitsP Unit has received aggregate distributions equal to such lesser amount of the amounts described in the foregoing clauses (A) and (B), until they have received cumulative then no further distributions under shall be made in respect of such Class P Unit pursuant to this Section 5.1(a)(ii4.03(b)(ii)(2) for all periods on or prior Section 4.03(c)(i)(2) (including pursuant to Section 10.02) unless and until the amount equal to the Class A Flip Point equal to 99% lesser of the cumulative sum, for all Company Taxable Years that end before amounts described in the Class A Flip Point foregoing clauses (A) and that have positive Code section 702(a)(8(B) net income (if anyexceeds the amount to distributed), of such cumulative Code section 702(a)(8) income subject to the deemed redemption contemplated by virtue of the Companypenultimate paragraph of Section 10(a) of Annex A hereto; and (iii) Thereafter, subject to Section 7.03(f), to the Class B Common Members and the Profits Members, in respect of each Common Unit and Profits Unit, on a pro rata basis in accordance with their respective Class B Units. (b) Subject Percentage Interests; provided, that Profits Members shall only be entitled to Sections 5.1(c), on participate in distributions of Available Cash Flow if and after the Class A Flip Point: (i) First, to the Class A extent determined by the Board, in its sole discretion acting unanimously, and any amounts not distributed to the Profits Members and in accordance with this proviso that would otherwise be distributed to Profits Members pursuant to this Section 7.03(b)(iii) but for this proviso shall instead be distributed to the Class B Common Members, pro rata in accordance with their relative respective Post-Flip Sharing Percentages, until the Class B Members have received cumulative distributions under Section 5.1(a)(i) and this Section 5.1(b)(i) for all periods equal to the difference between the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.2(e) herein); (ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(b)(ii) and Section 5.1(a)(ii) for all periods equal the greater of (A) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company, and (B) the Minimum Profits Distribution Amount; and (iii) Thereafter, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages. Provided, notwithstanding anything to the contrary in the foregoing Section 5.1(a) or (b), the Company shall accrue as a guaranteed payment for capital, and pay on each Distribution Date, prior to making any distribution pursuant to Sections 5.1(a) or (b), any balance of accrued but unpaid Preferred Distributions for prior periods, and, second, the Preferred Distribution that accrued for the current period, in each case to the Class A Members, pro rata, in proportion to their respective Class A Units for the relevant periodPercentage Interests. (c) If the aggregate Capital Contributions made by the Class A Member on a True Up Funding Date exceed the applicable Investor Contribution Amount, then 100% of Available Cash Flow shall be distributed 100% to the Class A Member until the Class A Member has received cumulative Available Cash Flow pursuant to this Section 5.1(c) equal to such excess.