End-of-Year True Up. If the federal income Tax Return that the Company files for the Fiscal Year in which the Target Internal Rate of Return is treated as having been achieved suggests that the Target Internal Rate of Return was not achieved in the month the Company assumed 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), then the Managing Member will recalculate when the Target Internal Rate of Return was achieved and send a new notice to the Members that will be subject to the same dispute resolution procedures in Section 11.11(b) as the original notice; provided that a disagreeing Member must notify the Managing Member of its disagreement with the revised calculation within sixty (60) calendar days after receipt. The Managing Member shall also calculate the shortfall in or excess Distributable Cash, in present-value terms using the Target Internal Rate of Return as the discount rate, that the Class A Member received as a consequence of the earlier miscalculation. The shortfall or excess will be grossed up (without duplication for any tax detriment taken into account in calculating when the Target Internal Rate of Return was reached) for income taxes payable thereon assuming an income tax rate equal to the Corporate Tax Rate, calculated by dividing such shortfall or excess by 100% minus such income tax rate (such shortfall or excess increased by the tax gross up, the “Cash Difference”). Once the revised calculation becomes final, the percentages in Section 6.1 will be adjusted to the maximum extent necessary to correct, on a present-value basis calculated at the Target Internal Rate of Return, the Cash Difference. The revised percentages will remain in effect until the Cash Difference has been eliminated. Limited Liability Company Agreement of
End-of-Year True Up. (i) Prior to filing the Tax Return for the Taxable Year which includes the Flip Date, the Manager shall compare the Tax Benefits and Tax Costs for the portion of the Taxable Year through the calendar month in which such Flip Date was determined to have occurred, as taken into account in the calculation of such Flip Date, with the Tax Benefits and Tax Costs for such period as determined using the amounts reflected in the Tax Return as proposed to be filed, other than to the extent of any difference in such calculation of the Flip Date and such amounts reflected in the Tax Returns as the result of the application of the provisions of Section 10.2(e) or the calculation assumptions and conventions in this Section 10.2. In the event of any difference (disregarding de minimis amounts) the Manager shall apply such adjustments ratably to the Tax Payment Dates for such Taxable Year and shall re-calculate the Trigger Percentage based upon the amounts reflected in such return and shall (A) adjust the Flip Date accordingly (including by advancing or retarding the Flip Date to a prior or subsequent calendar month), and (B) determine the difference (the “Cash Difference”) between the actual cash distribution to the Class A Members on the Distribution Date immediately following the month in which such Flip Date was originally determined to have occurred (and any subsequent Distribution Dates, if relevant) and the cash distribution which would have been made on such Distribution Date(s) based on the recalculated Trigger Percentage (it being acknowledged that any difference between the Tax Benefits and Tax Costs assumed to be allocable to the Class A Interest at the time such Flip Date was first determined and the amounts of such Tax Benefits and Tax Costs reflected in the allocations pursuant to the Tax Return actually filed has been reflected in the final determination of such Flip Date under this paragraph (i)).
End-of-Year True Up. If the federal income Tax Return that the Company files for the Fiscal Year in which the Target IRR is achieved suggests that the Target IRR was not achieved in the month the Company assumed for reasons other than inaccuracy of the Fixed Tax Assumptions (unless they are incorrect as a result of breach of a representation or covenant by the Class A Member) or the calculation assumptions and conventions in Section 6.5(c), then the Managing Member will cause the Manager to recalculate when the Target IRR was achieved and send a new notice to the Class B Members that will be subject to the same dispute resolution procedures in Section 12.11 as the original notice, provided the Class B Members notify the Managing Member of their disagreement with the revised calculation within 10 days after receipt. The Managing Member will also cause the Manager to calculate the shortfall in or excess Distributable Cash, in present-value terms using the Target IRR as the discount rate, that the Class B Members received as a consequence of the earlier miscalculation (the “Cash Difference”). Once the revised calculation becomes final, the sharing percentages in Section 6.1 will be adjusted to the maximum extent necessary to correct, on a present value basis calculated at the Target IRR, the Cash Difference. The revised sharing percentages will remain in effect until the Cash Difference has been eliminated.
End-of-Year True Up. If there is any difference in the items of taxable income, loss, gain, credit and deduction for the period through when the Flip Date was assumed to have occurred and was reported by the Company on the United States federal income Tax Return the Company files for the Tax Year in which the Manager concluded that the Calculated Amount equaled zero compared to such items used to calculate when the Calculated Amount actually equaled zero, then the Managing Member will cause the Manager to recalculate when the Flip Date was reached and send a new notice to the Class B Members, but only take into account in the recalculation differences that are not explained by inaccuracy of the Fixed Tax Assumptions (unless they are incorrect as a result of breach of a representation or covenant by the Class A Member) or the calculation assumptions and conventions in Section 6.6(c). The Managing Member will cause the Manager to also calculate the shortfall in or excess Distributable Cash, in present-value terms that the Class B Members failed to receive or received as a consequence of the earlier miscalculation (the “Cash Difference”). Once the revised calculation becomes final, the sharing percentages in Section 5.1(b) and Section 6.1 will be adjusted to provide the maximum amount of distributions to the Class B Members to correct, on a present-value basis, the Cash Difference. The revised sharing percentages will remain in effect until the Cash Difference has been eliminated.
End-of-Year True Up. If, for reasons other than inaccuracy of the Fixed Tax Assumptions (unless they are incorrect as a result of breach of a representation or covenant by the Class A Member) or the calculation assumptions and conventions in Section 7.11(c), the federal income tax return that the Company files for the Fiscal Year in which the Target Internal Rate of Return is achieved suggests that the Target Internal Rate of Return was not achieved in the month that the Company assumed, then the Managing Member will recalculate when the Target Internal Rate of Return was achieved and send a new notice that includes the Target IRR Report showing the Managing Member’s calculations to the Class B Member. The Managing Member will also calculate the shortfall in or excess Distributable Cash, in present value terms using the Target Internal Rate of Return as the discount rate, that the Members received as a consequence of the earlier miscalculation (the “Cash Difference”). Any Member that received actual distributions in excess of the recomputed distributions will reimburse the Company by the next Distribution Date following receipt of notification of such excess distributions. The Company will redistribute the reimbursed excess distribution in accordance with the recomputed distributions. If such Member does not reimburse the Company by the next Distribution Date following receipt of notification of excess distributions, the Company may elect to either (i) xxx the defaulting Member for any amounts due or (ii) withhold any cash distributions to be made to such Member until the Cash Difference has been eliminated.
End-of-Year True Up. If there is any difference in the items of taxable income, loss, gain, credit and deduction for the period through when the Flip Date was assumed PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE COMMISSION PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT; [***] DENOTES OMISSIONS. to have occurred and was reported by the Company on the United States federal income Tax return the Company files for the Fiscal Year in which the Manager concluded that the Calculated Amount equaled zero compared to such items used to calculate when the Calculated Amount actually equaled zero, then the Manager shall recalculate when the Flip Date was reached and send a new notice to the Members, but only take into account in the recalculation differences that are not explained by 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). The Manager shall also calculate the shortfall in or excess Distributions, in present-value terms, that the Members failed to receive or received as a consequence of the earlier miscalculation (the “Cash Difference”). Once the revised calculation becomes final, the Distributions made pursuant to Section 4.1(b)(ii) will be adjusted to provide the maximum amount of distributions to the Members to correct, on a present-value basis, the Cash Difference. The revised Distributions made pursuant to Section 4.1(b)(ii) will remain in effect until the Cash Difference has been eliminated.
