Common use of Safe Harbor Valuation Election Clause in Contracts

Safe Harbor Valuation Election. Notwithstanding any provision of this Agreement to the contrary, the Board of Managers, without the consent of any Member, is hereby authorized to elect, on behalf of the Company and each of the Members, to make the “safe harbor election” (the “Safe Harbor Valuation Election”) described in IRS Notice 2005-43 (the “IRS Notice”) pursuant to which each “safe harbor partnership interest” (as defined in the IRS Notice) that is issued by the Company to a service provider (including, without limitation, any Person that is an indirect member of the Company) while the election is in effect, in connection with services provided to the Company or any Affiliate of the Company, will be treated as having a value equal to the “liquidation value” of such interest as determined in the manner described in the IRS Notice. The Board of Managers is directed to make the Safe Harbor Valuation Election after the revenue procedure proposed in the Notice is issued in final form, and may, in its discretion, make such an election or a similar election if such revenue procedure (or guidance of a similar nature) is ultimately issued by the IRS in modified form. The Safe Harbor Valuation Election will be binding on the Company and each Member (including any Person to whom any Membership Unit is Transferred in connection with the performance of services) with respect to each issuance of such a “safe harbor partnership interest” while such election is in effect. The Company and each Member (including any service provider receiving any Membership Unit in connection with the performance of services) agree to comply with any reasonable request of the Board of Managers that, in the Board of Managers’ good faith judgment, is necessary to comply with the requirements of the Safe Harbor Valuation Election described in the proposed revenue procedure, as incorporated in the anticipated revenue procedure or other guidance issued in final form, with respect to all Membership Units that are issued in connection with the performance of services while such election remains in effect. Such Safe Harbor Valuation Election will remain in effect until terminated in accordance with the rules set forth in the anticipated IRS guidance described in the IRS Notice as ultimately issued. The Board of Managers is further authorized, in its discretion and without the consent of any Member, to revoke a Safe Harbor Valuation Election previously made on behalf of the Company and each of its Members; provided that such revocation may be made only with the written consent of each Member providing services to the Company with respect to whom such revocation would result in an inclusion in such Member’s income in connection with the issuance of an Company Interest to such Member, or in other adverse Tax consequences to such Member.

Safe Harbor Valuation Election. Notwithstanding any provision of this Agreement to the contrary, the Board of Managers, without the consent of any Member, is hereby authorized to elect, on behalf of the Company LLC and each of the Members, to make the “safe harbor election” (the “Safe Harbor Valuation Election”) described in IRS Internal Revenue Service Notice 2005-43 (the “IRS Notice”) pursuant to which each “safe harbor partnership interest” (as defined in the IRS Notice) that is issued transferred by the Company LLC to a service provider (including, without limitation, any Person that is an indirect member of the CompanyLLC) while the election is in effect, in connection with services provided to the Company LLC or any Affiliate of the CompanyLLC, will be treated as having a value equal to the “liquidation value” of such interest as determined in the manner described in the IRS Notice. The Board of Managers is directed to make the Safe Harbor Valuation Election after the revenue procedure proposed in the Notice is issued in final form, and may, in its discretion, make such an election or a similar election if such revenue procedure (or guidance of a similar nature) is ultimately issued by the IRS Internal Revenue Service in modified form. The Safe Harbor Valuation Election will be binding on the Company LLC and each Member (including any Person to whom any Membership Unit an LLC Interest is Transferred transferred in connection with the performance of services) with respect to each issuance transfer of such a “safe harbor partnership interest” while such election is in effect. The Company LLC and each Member (including any service provider receiving any Membership Unit an LLC Interest in connection with the performance of services) agree to comply with any reasonable request of the Board of Managers that, in the Board of Managers’ good faith judgment, is necessary to comply with the requirements of the Safe Harbor Valuation Election described in the proposed revenue procedure, as incorporated in the anticipated revenue procedure or other guidance issued in final form, with respect to all Membership Units LLC Interests that are issued transferred in connection with the performance of services while such election remains in effect. Such Safe Harbor Valuation Election will remain in effect until terminated in accordance with the rules set forth in the anticipated IRS Internal Revenue Service guidance described in the IRS Notice as ultimately issued. The Board of Managers is further authorized, in its discretion and without the consent of any Member, to revoke a Safe Harbor Valuation Election previously made on behalf of the Company LLC and each of its Members; provided that such revocation may be made only with the written consent of each Member providing services to the Company LLC with respect to whom such revocation would result in an inclusion in such Member’s income in connection with the issuance transfer of an Company LLC Interest to such Member, or in other adverse Tax tax consequences to such Member.

Safe Harbor Valuation Election. Notwithstanding any provision of this Agreement to the contrary, the Board of Managers, without the consent of any Member, is hereby authorized to elect, on behalf of the Company and each of the Members, to make the “safe harbor election” (the “Safe Harbor Valuation Election”) described in IRS Internal Revenue Service Notice 2005-43 (the “IRS Notice”) pursuant to which each “safe harbor partnership interest” (as defined in the IRS Notice) that is issued transferred by the Company to a service provider (including, without limitation, any Person that is an indirect member of the Company) while the election is in effect, in connection with services provided to the Company or any Affiliate of the Company, will be treated as having a value equal to the “liquidation value” of such interest as determined in the manner described in the IRS Notice. The Board of Managers is directed to make the Safe Harbor Valuation Election after the revenue procedure proposed in the Notice is issued in final form, and may, in its discretion, make such an election or a similar election if such revenue procedure (or guidance of a similar nature) is ultimately issued by the IRS Internal Revenue Service in modified form. The Safe Harbor Valuation Election will be binding on the Company and each Member (including any Person to whom any Membership Unit a Common Share is Transferred transferred in connection with the performance of services) with respect to each issuance transfer of such a “safe harbor partnership interest” while such election is in effect. The Company and each Member (including any service provider receiving any Membership Unit a Common Share, including an Incentive Common Share, in connection with the performance of services) agree to comply with any reasonable request of the Board of Managers that, in the Board of Managers’ good faith judgment, is necessary to comply with the requirements of the Safe Harbor Valuation Election described in the proposed revenue procedure, as incorporated in the anticipated revenue procedure or other guidance issued in final form, with respect to all Membership Units Common Shares that are issued transferred in connection with the performance of services while such election remains in effect. Such Safe Harbor Valuation Election will remain in effect until terminated in accordance with the rules set forth in the anticipated IRS Internal Revenue Service guidance described in the IRS Notice as ultimately issued. The Board of Managers is further authorized, in its discretion and without the consent of any Member, to revoke a Safe Harbor Valuation Election previously made on behalf of the Company and each of its Members; provided that such revocation may be made only with the written consent of each Member providing services to the Company with respect to whom such revocation would result in an inclusion in such Member’s income in connection with the issuance transfer of an Company Interest a Common Share to such Member, or in other adverse Tax tax consequences to such Member.