Common use of Fair Market Value Determination Clause in Contracts

Fair Market Value Determination. If at any time new Units are to be issued to a Member making additional Capital Contributions to the Company pursuant to Section 3.03 or Section 3.04 and the Fair Market Value of the Units has not been agreed to by the Members as provided in Exhibit D, then the number of Units to be issued to such Member shall be determined based upon the Estimated Fair Market Value as of the date of issuance of the Units. If the actual Fair Market Value as of the date of issuance of such Units is later determined, as provided in Exhibit D, to be different than the Estimated Fair Market Value, then the number of Units issued to the Member based on such Estimated Fair Market Value shall be adjusted so that the actual number of Units held by such Member is equal to the sum of the Units held by such Member immediately prior to such issuance plus the number of Units to which such Member was actually entitled to receive based on the actual Fair Market Value as of the date of issuance. To the extent that any Distributions have been paid to the Members based upon Percentage Interests that were determined based upon an Estimated Fair Market Value that is subsequently adjusted as provided herein, then any Member (an “Overfunded Member”) that was paid Distributions in excess of the amount to which the Overfunded Member would have been entitled had the number of Units originally been issued based on the actual Fair Market Value (“Excess Distributions”) shall pay such Excess Distributions to the remaining Members pro rata in proportion to their as-adjusted Units so that the Distributions reflect the final Fair Market Value determination, which payment shall be made within five (5) Business Days of the final Fair Market Value determination. To the extent that any Overfunded Member fails to pay over any Excess Distributions as provided herein, the Company shall cause the amount of such Excess Distributions to be deducted from future Distributions as soon as possible and any Distributions that should have been paid to a Member that were not so paid shall be paid to the Member as soon as reasonably practicable, but no later than the payment of the next Distribution. In the event that any Excess Distributions have not been repaid by an Overfunded Member at the time of any dissolution or liquidation of the Company pursuant to Article Eight, then the Overfunded Member shall be required to repay to the Company any remaining Excess Distributions due to the Company within five (5) Business Days of the determination of the amounts due from such Overfunded Member pursuant to Article Eight.

Fair Market Value Determination. If at any time new Units are to be issued to a Member making additional Capital Contributions to the Company pursuant to Section 3.03 or Section 3.04 and the Fair Market Value of the Units has not been agreed to by the Members as provided in Exhibit D, then the number of Units to be issued to such Member shall be determined based upon the Estimated Fair Market Value as of the date of issuance of the Units. If the actual Fair Market Value as of the date of issuance of such Units is later determined, as provided in Exhibit D, to be different than the Estimated Fair Market Value, then the number of Units issued to the Member based on such Estimated Fair Market Value shall be adjusted so that the actual number of Units held by such Member is equal to the sum of the Units held by such Member immediately prior to such issuance plus the number of Units to which such Member was actually entitled to receive based on the actual Fair Market Value as of the date of issuance. To the extent that any Distributions have been paid to the Members based upon Percentage Interests that were determined based upon an Estimated Fair Market Value that is subsequently adjusted as provided herein, then any Member (an “Overfunded Member”) that was paid Distributions in excess of the amount to which the Overfunded Member would have been entitled had the number of Units originally been issued based on the actual Fair Market Value (“Excess Distributions”) shall pay such Excess Distributions to the remaining Members pro rata in proportion to their as-adjusted Units so that the Distributions reflect the final Fair Market Value determination, which payment shall be made within five (5) Business Days of the final Fair Market Value determination. To the extent that any Overfunded Member fails to pay over any Excess Distributions as provided herein, DMNORTH #6535211 v11 the Company shall cause the amount of such Excess Distributions to be deducted from future Distributions as soon as possible and any Distributions that should have been paid to a Member that were not so paid shall be paid to the Member as soon as reasonably practicable, but no later than the payment of the next Distribution. In the event that any Excess Distributions have not been repaid by an Overfunded Member at the time of any dissolution or liquidation of the Company pursuant to Article Eight, then the Overfunded Member shall be required to repay to the Company any remaining Excess Distributions due to the Company within five (5) Business Days of the determination of the amounts due from such Overfunded Member pursuant to Article Eight.