Common use of Special Provisions Governing Capital Account Allocations Clause in Contracts

Special Provisions Governing Capital Account Allocations. The following special provisions shall apply whether or not inconsistent with the provisions of Section 5.04: (a) If there is a net decrease in "partnership minimum gain" (within the meaning of Treasury Regulation Section 1.704-2(b)(2)) during a fiscal year, all Persons with a deficit balance in their Capital Accounts at the end of such year shall be allocated, before any other allocations of Partnership items for such fiscal year, items of income and gain for such year (and if necessary, subsequent years), in the amount and in the proportions necessary to eliminate such deficits as quickly as possible. This Section 5.05(a) is intended to comply with the requirements of Treasury Regulation Section 1.704-2(f), and is to be interpreted to comply with the requirements of such regulation. (b) If any Person unexpectedly receives any adjustments, allocations or Distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain) shall be specially allocated to such Person in an amount and manner sufficient to eliminate a deficit in its Capital Account created by such adjustments, allocations or Distributions as quickly as possible. This Section 5.05(b) is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(3). Any special allocations of items of income or gain pursuant to this Section 5.05(b) shall be taken into account in computing subsequent allocations of Net Income or Net Loss so that the net amounts of any items so allocated shall, to the extent possible, be equal to the net amounts that would have been allocated to each such Person if such unexpected adjustments, allocations or Distributions had not occurred. (c) Section 5.04(a) notwithstanding, in the event of a sale or transfer of a Limited Partnership Interest by the General Partner or any of its Corporate Affiliates (other than to the General Partner or a Corporate Affiliate of the General Partner or in a transaction in which the General Partner and its Corporate Affiliates transfer their entire interest in the Partnership) the General Partner may, in its sole discretion, allocate gross income to the General Partner or such Corporate Affiliate, as the case may be, to the extent required to make the Capital Account of the General Partner or such Corporate Affiliate immediately prior to such sale or transfer equal to the product of (I) the aggregate Percentage Interest of the General Partner or such Corporate Affiliate, (II) the quotient obtained by dividing the aggregate amount of Limited Partnership Interests outstanding by 0.99 and (III) an amount equal to the Capital Account of a Limited Partnership Interest. (d) Any net gains realized by the Partnership upon the dissolution of the Partnership shall be credited to the Capital Accounts of the Partners (after crediting or charging thereto the appropriate portion of Net Income, Net Loss and Depreciation and after giving effect to all amounts distributed or to be distributed to such Partners with respect to all calendar quarters of the Partnership prior to the quarter in which the dissolution of the Partnership occurs) in the following priority: (i) First, to those Partners whose Capital Accounts have negative balances, in proportion to such negative balances, until such negative balances have been eliminated; (ii) Next, to the Partners in a manner so as to cause such Partners' respective Capital Account balances to be in the same proportion to each other as their respective Percentage Interests; and (iii) The balance, if any, 1% to the General Partner and 99% among the Limited Partners, pro rata in accordance with their Percentage Interests. (e) In the event any net gains realized by the Partnership upon the dissolution of the Partnership are insufficient to cause the Partners' respective Capital Account balances to be in the ratios of their respective Percentage Interests, then, Section 5.04(a) notwithstanding, gross income shall be allocated to those Partners whose Capital Accounts have balances (after giving effect to the allocations provided in Section 5.05(d)), that are less than the amount required to make all Partners' Capital Account balances be in the ratio of their respective Percentage Interests until all Partners' Capital Account balances are in such ratios; provided, however, that an allocation shall not be made pursuant to this Section 5.05(e) to the extent such allocation would cause or increase a negative balance in any other Partner's Capital Account. (f) If any Partner makes a payment to the Partnership to pay an expense or cover a loss of the Partnership, or pays an expense of the Partnership, including, without limitation, any organizational expenses incurred in connection with the Reorganization and any costs incurred under the Indemnification and Reimbursement Agreement, and the result is that the Partnership is required to recognize income or is entitled to a loss or deduction with respect to such amount so contributed or paid, then such income, loss or deduction shall be specially allocated to such Partner. (g) In the event that the Internal Revenue Service is successful in asserting an adjustment to the taxable income of a Partner and, as a result of any such adjustment, the Partnership is entitled to a deduction for federal income tax purposes with respect to any portion of such adjustment, such deduction shall be allocated to such Partner. (h) The General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation or items thereof (including, but not limited to, gross income) to the extent necessary to make the Capital Account balances of the Partners be in the ratios of their Percentage Interests. In addition to the other special allocations that the General Partner may make under this Section 5.05(h), the General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation (or items thereof) and adopt such other methods and procedures in order to preserve or achieve uniformity of the Partnership Interests, but only if such allocations and methods and procedures would not have a material adverse effect on the Partners holding the Partnership Interests and if they are consistent with the principles of Section 704 of the Code. (i) In the event that the Internal Revenue Service is successful in asserting an adjustment to the allocations of Net Income, Net Loss or Depreciation provided for in Sections 5.04 and 5.05 for federal income tax purposes, such adjustment shall not have any effect on Capital Accounts or on the Distributions made or to be made pursuant to the provisions of this Agreement, unless the General Partner determines that giving effect to such adjustment would make the Partners' Capital Account balances be in the proportion of the Percentage Interests.

Special Provisions Governing Capital Account Allocations. The following special provisions shall apply whether or not To the extent inconsistent with the provisions of Section 5.04Subsection 5.2(a) the following special provisions shall govern allocations to Capital Accounts: (ai) If there is a net decrease in "partnership minimum gain" (within the meaning of Treasury Regulation Regulations Section 1.704-2(b)(2)) during a fiscal taxable year, all Persons with a deficit balance each Partner shall (subject to the exceptions set forth in their Capital Accounts at the end of such year shall Treasury Regulations Section 1.704-2(f)) be allocated, before any other allocations of Partnership items for such fiscal year, allocated items of income and gain for such year (and and, if necessary, for subsequent years), ) equal to the portion of such Partner's share of the net decrease in the amount and in the proportions necessary to eliminate such deficits as quickly as possiblepartnership minimum gain. This Section 5.05(aSubsection 5.2(b)(i) is intended to comply with the requirements be a "minimum gain chargeback" within meaning of Treasury Regulation Regulations Section 1.704-2(f), and is to be interpreted to comply with the requirements of such regulation. (bii) If any Person Partner unexpectedly receives any adjustments, allocations or Distributions distributions described in Treasury Regulation Regulations Section 1.704-1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1.704- 1(b)(2)(ii)(d)(6), items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain) shall be specially allocated to such Person Partner in an amount and manner sufficient to eliminate a deficit in its Capital Account (after taking into account adjustments, distributions and allocations described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) in excess of its obligations to restore such deficit (within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)) created by such adjustments, allocations or Distributions distributions as quickly as possible. This Section 5.05(bSubsection 5.2(b)(ii) is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Regulations Section 1.704-1(b)(2)(ii)(d)(3). ) and is to be interpreted to comply with the requirements of such regulation. (iii) In accordance with Treasury Regulations Section 1.704-2: (1) any items of partnership loss, deduction or expenditure (including expenditures described in Section 705(a)(2)(B) of the Code) that are attributable to liabilities of the Partnership for which no Partner bears the economic risk of loss shall be allocated in the same manner as Net Losses hereunder; and (2) any items of partnership loss, deduction or expenditure (including expenditures described in Section 705(a)(2)(B) of the Code) that are attributable to nonrecourse debt of the partnership for which one or more Partners bears the economic risk of loss shall be allocated to each Partner in proportion to the extent to which such Partner bears such economic risk of loss. (iv) Any special allocations of items of income or gain pursuant to this Section 5.05(bSubsections 5.2(b)(i), (ii), (iii) and (iv) shall be taken into account in computing subsequent allocations of Net Income items of income, gain, deduction or Net Loss loss so that the net amounts of any items so allocated shall, to the extent possiblepossible and consistent with such Sections, be equal to the net amounts that would have been allocated to each such Person if such unexpected adjustments, allocations or Distributions Partner had not occurred. (c) Section 5.04(a) notwithstanding, in the event of a sale or transfer of a Limited Partnership Interest by the General Partner or any of its Corporate Affiliates (other than to the General Partner or a Corporate Affiliate of the General Partner or in a transaction in which the General Partner and its Corporate Affiliates transfer their entire interest in the Partnership) the General Partner may, in its sole discretion, allocate gross income to the General Partner or such Corporate Affiliate, as the case may be, to the extent required to make the Capital Account of the General Partner or such Corporate Affiliate immediately prior to such sale or transfer equal to the product of (I) the aggregate Percentage Interest of the General Partner or such Corporate Affiliate, (II) the quotient obtained by dividing the aggregate amount of Limited Partnership Interests outstanding by 0.99 and (III) an amount equal to the Capital Account of a Limited Partnership Interest. (d) Any net gains realized by the Partnership upon the dissolution of the Partnership shall be credited to the Capital Accounts of the Partners (after crediting or charging thereto the appropriate portion of Net Income, Net Loss and Depreciation and after giving effect to all amounts distributed or to be distributed to such Partners with respect to all calendar quarters of the Partnership prior to the quarter in which the dissolution of the Partnership occurs) in the following priority: (i) First, to those Partners whose Capital Accounts have negative balances, in proportion to such negative balances, until such negative balances have been eliminated; (ii) Next, to the Partners in a manner so as to cause such Partners' respective Capital Account balances to be in the same proportion to each other as their respective Percentage Interests; and (iii) The balance, if any, 1% to the General Partner and 99% among the Limited Partners, pro rata in accordance with their Percentage Interests. (e) In the event any net gains realized by the Partnership upon the dissolution of the Partnership are insufficient to cause the Partners' respective Capital Account balances to be in the ratios of their respective Percentage Interests, then, Section 5.04(a) notwithstanding, gross income shall be allocated to those Partners whose Capital Accounts have balances (after giving effect to the allocations provided in Section 5.05(d)), that are less than the amount required to make all Partners' Capital Account balances be in the ratio of their respective Percentage Interests until all Partners' Capital Account balances are in such ratios; provided, however, that an allocation shall not be made pursuant to this Section 5.05(e) to the extent such allocation would cause or increase a negative balance in any other Partner's Capital AccountSections not been made. (f) If any Partner makes a payment to the Partnership to pay an expense or cover a loss of the Partnership, or pays an expense of the Partnership, including, without limitation, any organizational expenses incurred in connection with the Reorganization and any costs incurred under the Indemnification and Reimbursement Agreement, and the result is that the Partnership is required to recognize income or is entitled to a loss or deduction with respect to such amount so contributed or paid, then such income, loss or deduction shall be specially allocated to such Partner. (g) In the event that the Internal Revenue Service is successful in asserting an adjustment to the taxable income of a Partner and, as a result of any such adjustment, the Partnership is entitled to a deduction for federal income tax purposes with respect to any portion of such adjustment, such deduction shall be allocated to such Partner. (h) The General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation or items thereof (including, but not limited to, gross income) to the extent necessary to make the Capital Account balances of the Partners be in the ratios of their Percentage Interests. In addition to the other special allocations that the General Partner may make under this Section 5.05(h), the General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation (or items thereof) and adopt such other methods and procedures in order to preserve or achieve uniformity of the Partnership Interests, but only if such allocations and methods and procedures would not have a material adverse effect on the Partners holding the Partnership Interests and if they are consistent with the principles of Section 704 of the Code. (i) In the event that the Internal Revenue Service is successful in asserting an adjustment to the allocations of Net Income, Net Loss or Depreciation provided for in Sections 5.04 and 5.05 for federal income tax purposes, such adjustment shall not have any effect on Capital Accounts or on the Distributions made or to be made pursuant to the provisions of this Agreement, unless the General Partner determines that giving effect to such adjustment would make the Partners' Capital Account balances be in the proportion of the Percentage Interests.

Special Provisions Governing Capital Account Allocations. The following special provisions shall apply whether or not inconsistent with the provisions of Section 5.04: (a) If there is a net decrease in "partnership minimum gain" (within In the meaning of Treasury Regulation Section 1.704-2(b)(2)) during a fiscal year, all Persons with event that any Partner has a deficit balance in their Capital Accounts Account at the end of any Partnership fiscal year which is in excess of such year Partner's obligation (including any deemed obligation under Treasury Regulations or temporary Treasury Regulations), if any, to restore an amount to the Partnership, and such excess deficit exists following the allocations referred to in Sections 8.3(b) and (c), such Partner shall be allocated, before any other allocations of Partnership items for allocated Net Income in proportion to such fiscal year, items of income and gain for such year (and if necessary, subsequent years), in the amount and in the proportions necessary to eliminate such deficits as quickly as possible. This Section 5.05(a) is intended to comply with the requirements of Treasury Regulation Section 1.704-2(f), and is to be interpreted to comply with the requirements of such regulationremaining excess deficit amounts. (b) If any Person Partner unexpectedly receives any adjustments, allocations or Distributions distributions described in Treasury Regulation Regulations Section 1.704-1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), Net Income or items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain) shall be specially allocated to such Person Partner in an amount and manner sufficient to eliminate eliminate, to the extent required by the Treasury Regulations, a deficit in its Capital Account created by such adjustments, allocations or Distributions (computed as provided in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(3)) as quickly as possible. This Section 5.05(b8.4(b) is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Regulations Section 1.704-1(b)(2)(ii)(d)(3)) and shall be interpreted to comply with the requirements of such regulation. Any special allocations of items of income or gain pursuant to this Section 5.05(b8.4(b) shall be taken into account in computing subsequent allocations of Net Income or Net Loss so that the net amounts of any items subsequently so allocated shall, to the extent possible, be equal to the net amounts that would have been allocated to each such Person Partner if such unexpected adjustments, special allocations or Distributions had not occurred. (c) Section 5.04(a) notwithstanding, in In the event there is a net decrease in Minimum Gain during a Partnership taxable year, the Partners shall be allocated items of a sale income and gain in accordance with Treasury Regulations Section 1.704-2(f). Any Partner's share of Minimum Gain shall be determined in accordance with Treasury Regulations Section 1.704-2(g). This Section 8.4(c) is intended to comply with the minimum gain chargeback requirement of Treasury Regulations Section 1.704-2 and shall be interpreted to comply with the requirements of such regulation. Any special allocations of items of income or transfer gain pursuant to this Section 8.4(c) shall be taken into account in computing subsequent allocations of a Limited Partnership Interest by Net Income or Net Loss so that the General Partner or net amounts of any of its Corporate Affiliates (other than to items subsequently so allocated and the General Partner or a Corporate Affiliate of the General Partner or in a transaction in which the General Partner and its Corporate Affiliates transfer their entire interest in the Partnership) the General Partner may, in its sole discretion, allocate gross income to the General Partner or such Corporate Affiliate, as the case may bespecial allocations shall, to the extent required to make the Capital Account of the General Partner or such Corporate Affiliate immediately prior to such sale or transfer possible, be equal to the product of (I) the aggregate Percentage Interest of the General net amounts that would have been allocated to each Partner or if such Corporate Affiliate, (II) the quotient obtained by dividing the aggregate amount of Limited Partnership Interests outstanding by 0.99 and (III) an amount equal to the Capital Account of a Limited Partnership Interestspecial allocations had not occurred. (d) Any net gains realized To the extent required by the Partnership upon the dissolution Treasury Regulations Section 1.704- 2(i), any tax items of the Partnership shall be credited that are attributable to the Capital Accounts of the Partners (after crediting or charging thereto the appropriate portion of Net Income, Net Loss and Depreciation and after giving effect to all amounts distributed or to be distributed to such Partners with respect to all calendar quarters a non-recourse debt of the Partnership prior that constitutes "partner non-recourse debt" as defined in Treasury Regulations Section 1.704-2(b)(4) shall be allocated in accordance with the provisions of Treasury Regulations Section 1.704-2(i). This Section 8.4(d) is intended to satisfy the quarter in which the dissolution requirements of the Partnership occurs) in the following priority:Treasury Regulations Section (i) First, (including the partner nonrecourse minimum gain chargeback requirements) and shall be interpreted to those Partners whose Capital Accounts have negative balances, comply with the requirements of such regulation. Any special allocations pursuant to this Section 8.4(d) shall be taken into account in proportion to such negative balances, until such negative balances have been eliminated; (ii) Nextcomputing subsequent allocations of Net Income or Net Loss so that the net amounts of any items subsequently so allocated and the special allocations shall, to the Partners in a manner so as extent possible, be equal to cause such Partners' respective Capital Account balances to be in the same proportion net amounts that would have been allocated to each other as their respective Percentage Interests; and (iii) The balance, Partner if any, 1% to the General Partner and 99% among the Limited Partners, pro rata in accordance with their Percentage Interestssuch special allocations had not occurred. (e) In The General Partners shall make special allocations of Net Income or Net Loss or items of income, gain, loss or deduction to GP Units as may be necessary to permit conversion of such Units to LP Units in accordance with Section 4.1. For purposes of allocating income, gain, loss or deduction to LP Units that were converted from GP Units for periods following such conversion, the event any net gains realized by the Partnership upon the dissolution Units shall be deemed as of the Partnership are insufficient effective date of such conversion to cause have been allocated the Partners' respective Capital Account balances same amount of income, gain, loss and deductions and to be in have received the ratios of their respective Percentage Interests, then, Section 5.04(a) notwithstanding, gross income shall be allocated same distributions as the LP Units outstanding prior to those Partners whose Capital Accounts have balances (after giving effect to the allocations provided in Section 5.05(d)), that are less than the amount required to make all Partners' Capital Account balances be in the ratio of their respective Percentage Interests until all Partners' Capital Account balances are in such ratios; provided, however, that an allocation shall not be made pursuant to this Section 5.05(e) to the extent such allocation would cause or increase a negative balance in any other Partner's Capital Accountconversion. (f) If and to the extent that any Partner makes a payment to the Partnership to pay an expense or cover a loss of the Partnership, or pays an expense of the Partnership, including, without limitation, any organizational expenses incurred in connection with the Reorganization and any costs incurred under the Indemnification and Reimbursement Agreement, and the result is that the Partnership is required deemed to recognize income as a result of any transaction between such Partner and the Partnership pursuant to Section 482, Section 483, Sections 1272-1274 or is entitled to a Section 7872 of the Code, or any similar provision now or hereafter in effect, any corresponding loss or deduction of the Partnership shall be allocated to the Partner who was charged with respect such income. In addition, if all or part of the deductions claimed by the Partnership for compensation to its employees is disallowed, the income attributable to such amount so contributed or paid, then such income, loss or deduction shall disallowed deductions will be specially allocated to the General Partners, and any subsequent deductions related to such Partnercompensation will be specially allocated to the General Partners. (g) In the event that the Internal Revenue Service is successful in asserting an adjustment to the taxable income of a Partner and, as a result of any such adjustment, the Partnership is entitled to a deduction for federal income tax purposes with respect to any portion of such adjustment, such deduction shall be allocated to such Partner. (h) The General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation or items thereof (including, but not limited to, gross income) to the extent necessary to make the Capital Account balances of the Partners be in the ratios of their Percentage Interests. In addition to the other special allocations that the General Partner Partners may make under this Section 5.05(h)8.4, to preserve uniformity of Units (subject to the priority distribution rights of certain classes of Units) the General Partner may, in its sole discretion and without the approval of any other Partner, Partners may make special allocations of Net Income, Income or Net Loss or Depreciation (items of income, gain, loss or items thereof) and adopt such other methods and procedures in order to preserve or achieve uniformity of the Partnership Interestsdeduction, but only if such allocations and methods and procedures would not have a material adverse effect on the Partners holding Unitholders (other than the Partnership Interests General Partners) and if they are consistent with the principles of Section 704 of the Code. (i) In the event that the Internal Revenue Service is successful in asserting an adjustment to the allocations of Net Income, Net Loss or Depreciation provided for in Sections 5.04 and 5.05 for federal income tax purposes, such adjustment shall not have any effect on Capital Accounts or on the Distributions made or to be made pursuant to the provisions of this Agreement, unless the General Partner determines that giving effect to such adjustment would make the Partners' Capital Account balances be in the proportion of the Percentage Interests.

Special Provisions Governing Capital Account Allocations. The following special provisions shall apply whether or not inconsistent with the provisions of Section 5.04: (a) If there is a net decrease in "partnership minimum gain" (within the meaning of Treasury Regulation Section 1.704-2(b)(2)) during a fiscal year, all Persons with a deficit balance in their Capital Accounts at the end of such year shall be allocated, before any other allocations of Partnership items for such fiscal year, items of income and gain for such year (and if necessary, subsequent years), in the amount and in the proportions necessary to eliminate such deficits as quickly as possible. This Section 5.05(a) is intended to comply with the requirements of Treasury Regulation Section 1.704-2(f), and is to be interpreted to comply with the requirements of such regulation. (b) If any Person unexpectedly receives any adjustments, allocations or Distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain) shall be specially allocated to such Person in an amount and manner sufficient to eliminate a deficit in its Capital Account created by such adjustments, allocations or Distributions as quickly as possible. This Section 5.05(b) is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(3). Any special allocations of items of income or gain pursuant to this Section 5.05(b) shall be taken into account in computing subsequent allocations of Net Income or Net Loss so that the net amounts of any items so allocated shall, to the extent possible, be equal to the net amounts that would have been allocated to each such Person if such unexpected adjustments, allocations or Distributions had not occurred. (c) Section 5.04(a) notwithstanding, in the event of a sale or transfer of a Unit or Limited Partnership Interest by the General Partner or any of its Corporate Affiliates (other than to the General Partner or a Corporate Affiliate of the General Partner or in a transaction in which the General Partner and its Corporate Affiliates transfer their entire interest in the Partnership) the General Partner may, in its sole discretion, allocate gross income to the General Partner or such Corporate Affiliate, as the case may be, to the extent required to make the Capital Account of the General Partner or such Corporate Affiliate immediately prior to such sale or transfer equal to the product of (I) the aggregate Percentage Interest of the General Partner or such Corporate Affiliate, (II) the quotient obtained by dividing the aggregate amount of Units and Limited Partnership Interests outstanding by 0.99 a fraction, the numerator of which is the aggregate Percentage Interest of all Unitholders and Limited Partners (other than the Assignor Limited Partner) and the denominator of which is 100 and (III) an amount equal to the Capital Account of a Limited Partnership InterestUnit. (d) Any net gains realized by the Partnership upon the dissolution of the Partnership shall be credited to the Capital Accounts of the Partners (other than the Assignor Limited Partner) and Unitholders (after crediting or charging thereto the appropriate portion of Net Income, Income and Net Loss and Depreciation and after giving effect to all amounts distributed or to be distributed to such Partners and Unitholders with respect to all calendar quarters of the Partnership prior to the quarter in which the dissolution of the Partnership occurs) in the following priority: (i) First, to those Partners and Unitholders whose Capital Accounts have negative balances, in proportion to such negative balances, until such negative balances have been eliminated; (ii) Next, to the Partners and Unitholders in a manner so as to cause such Partners' and Unitholders' respective Capital Account balances to be in the same proportion to each other as their respective Percentage Interests; and (iii) The balance, if any, 1% to the General Partner and 99% among the Limited Unitholders and Partners, pro rata in accordance with their Percentage Interests. (e) In the event any net gains realized by the Partnership upon the dissolution of the Partnership are insufficient to cause the Partners' and Unitholders' respective Capital Account balances to be in the ratios of their respective Percentage Interests, then, Section 5.04(a) notwithstanding, gross income shall be allocated to those Partners and Unitholders whose Capital Accounts have balances (after giving effect to the allocations provided in Section 5.05(d)), that are less than the amount required to make all Partners' and Unitholders' Capital Account balances be in the ratio of their respective Percentage Interests until all Partners' and Unitholders' Capital Account balances are in such ratios; provided, however, that an allocation shall not be made pursuant to this Section 5.05(e) to the extent such allocation would cause or increase a negative balance in any other Partner's or Unitholder's Capital Account. (fi) If any Partner or Unitholder makes a payment to the Partnership to pay an expense or cover a loss of the Partnership, or pays an expense of the Partnership, including, without limitation, any organizational expenses incurred in connection with the Reorganization and any costs incurred under the Indemnification and Reimbursement Agreement, and the result is that the Partnership is required to recognize income or is entitled to a loss or deduction with respect to such amount so contributed or paid, then such income, loss or deduction shall be specially allocated to such PartnerPartner or Unitholder. (ii) Any amounts received by the Partnership either from a trust established or letter of credit furnished pursuant to Section 4 of the Guaranty Agreement shall be considered a Contribution by ACMC if it is the General Partner or a Unitholder (or, if ACMC is not the General Partner or a Unitholder, any Corporate Affiliate that is the General Partner or a Unitholder) made to pay the expense of the Partnership to which the amounts received by the Partnership relate. (g) In the event that the Internal Revenue Service is successful in asserting an adjustment to the taxable income of a Partner or Unitholder and, as a result of any such adjustment, the Partnership is entitled to a deduction for federal income tax purposes with respect to any portion of such adjustment, such deduction shall be allocated to such PartnerPartner or Unitholder. (h) The General Partner may, in its sole discretion and without the approval of any Unitholder or other Partner, make special allocations of Net Income, Income or Net Loss or Depreciation or items thereof (including, but not limited to, gross income) to the extent necessary to make the Capital Account balances of the Partners and Unitholders be in the ratios of their Percentage Interests. In addition to the other special allocations that the General Partner may make under this Section 5.05(h)5.05, the General Partner may, in its sole discretion and without the approval of any Unitholder or other Partner, make special allocations of Net Income, Income or Net Loss or Depreciation (or items thereof) and adopt such other methods and procedures in order to preserve or achieve uniformity of the Partnership InterestsUnits, but only if such allocations and methods and procedures would not have a material adverse effect on the Partners Unitholders holding the Partnership Interests Units and if they are consistent with the principles of Section 704 of the Code. (i) In the event that the Internal Revenue Service is successful in asserting an adjustment to the allocations of Net Income, Income or Net Loss or Depreciation provided for in Sections 5.04 and 5.05 for federal income tax purposes, such adjustment shall not have any effect on Capital Accounts or on the Distributions made or to be made pursuant to the provisions of this Agreement, unless the General Partner determines that giving effect to such adjustment would make the Partners' and Unitholders' Capital Account balances be in the proportion of the Percentage Interests. (j) For purposes of charging and crediting Capital Accounts, the holder of a restricted Unit (which for purposes of this Section 5.05(j) shall include any Limited Partnership Interest received in exchange for a restricted Unit) shall not be treated as a Unitholder or Limited Partner during the period commencing on the date such holder acquires such restricted Unit and ending on the date such restricted Unit vests, unless such holder makes a timely election under Section 83(b) of the Code with respect to the transfer of such restricted Unit to such holder. During such period, all Distributions made with respect to such restricted Unit pursuant to this Agreement shall be treated as not made in respect of a partnership interest but shall be paid by the Partnership to such holder as compensation.

Special Provisions Governing Capital Account Allocations. The following special provisions shall apply whether or not inconsistent with the provisions of Section 5.04: (a) If there is a net decrease in "partnership minimum gain" (within In the meaning of Treasury Regulation Section 1.704-2(b)(2)) during a fiscal year, all Persons with event that any Partner has a deficit balance in their Capital Accounts Account at the end of any Partnership fiscal year which is in excess of such year Partner's obligation (including any deemed obligation under Treasury Regulations or temporary Treasury Regulations), if any, to restore an amount to the Partnership, and such excess deficit exists following the allocations referred to in Sections 8.3(b) and (c), such Partner shall be allocated, before any other allocations of Partnership items for allocated Net Income in proportion to such fiscal year, items of income and gain for such year (and if necessary, subsequent years), in the amount and in the proportions necessary to eliminate such deficits as quickly as possible. This Section 5.05(a) is intended to comply with the requirements of Treasury Regulation Section 1.704-2(f), and is to be interpreted to comply with the requirements of such regulationremaining excess deficit amounts. (b) If any Person Partner unexpectedly receives any adjustments, allocations or Distributions distributions described in Treasury Regulation Regulations Section 1.704-1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), Net Income or items of income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income, and gain) shall be specially allocated to such Person Partner in an amount and manner sufficient to eliminate eliminate, to the extent required by the Treasury Regulations, a deficit in its Capital Account created by such adjustments, allocations or Distributions (computed as provided in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(3)) as quickly as possible. This Section 5.05(b8.4(b) is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Regulations Section 1.704-1(b)(2)(ii)(d)(3)) and shall be interpreted to comply with the requirements of such regulation. Any special allocations of items of income or gain pursuant to this Section 5.05(b8.4(b) shall be taken into account in computing subsequent allocations of Net Income or Net Loss so that the net amounts of any items subsequently so allocated shall, to the extent possible, be equal to the net amounts that would have been allocated to each such Person Partner if such unexpected adjustments, special allocations or Distributions had not occurred. (c) Section 5.04(a) notwithstanding, in In the event there is a net decrease in Minimum Gain during a Partnership taxable year, the Partners shall be allocated items of a sale income and gain in accordance with Treasury Regulations Section 1.704-2(f). Any Partner's share of Minimum Gain shall be determined in accordance with Treasury Regulations Section 1.704-2(g). This Section 8.4(c) is intended to comply with the minimum gain chargeback requirement of Treasury Regulations Section 1.704-2 and shall be interpreted to comply with the requirements of such regulation. Any special allocations of items of income or transfer gain pursuant to this Section 8.4(c) shall be taken into account in computing subsequent allocations of a Limited Partnership Interest by Net Income or Net Loss so that the General Partner or net amounts of any of its Corporate Affiliates (other than to items subsequently so allocated and the General Partner or a Corporate Affiliate of the General Partner or in a transaction in which the General Partner and its Corporate Affiliates transfer their entire interest in the Partnership) the General Partner may, in its sole discretion, allocate gross income to the General Partner or such Corporate Affiliate, as the case may bespecial allocations shall, to the extent required to make the Capital Account of the General Partner or such Corporate Affiliate immediately prior to such sale or transfer possible, be equal to the product of (I) the aggregate Percentage Interest of the General net amounts that would have been allocated to each Partner or if such Corporate Affiliate, (II) the quotient obtained by dividing the aggregate amount of Limited Partnership Interests outstanding by 0.99 and (III) an amount equal to the Capital Account of a Limited Partnership Interestspecial allocations had not occurred. (d) Any net gains realized To the extent required by the Partnership upon the dissolution Treasury Regulations Section 1.704- 2(i), any tax items of the Partnership shall be credited that are attributable to the Capital Accounts of the Partners (after crediting or charging thereto the appropriate portion of Net Income, Net Loss and Depreciation and after giving effect to all amounts distributed or to be distributed to such Partners with respect to all calendar quarters a non-recourse debt of the Partnership prior that constitutes "partner non-recourse debt" as defined in Treasury Regulations Section 1.704-2(b)(4) shall be allocated in accordance with the provisions of Treasury Regulations Section 1.704-2(i). This Section 8.4(d) is intended to satisfy the quarter in which the dissolution requirements of the Partnership occurs) in the following priority:Treasury Regulations Section 1.704-2 (i) First, (including the partner nonrecourse minimum gain chargeback requirements) and shall be interpreted to those Partners whose Capital Accounts have negative balances, comply with the requirements of such regulation. Any special allocations pursuant to this Section 8.4(d) shall be taken into account in proportion to such negative balances, until such negative balances have been eliminated; (ii) Nextcomputing subsequent allocations of Net Income or Net Loss so that the net amounts of any items subsequently so allocated and the special allocations shall, to the Partners in a manner so as extent possible, be equal to cause such Partners' respective Capital Account balances to be in the same proportion net amounts that would have been allocated to each other as their respective Percentage Interests; and (iii) The balance, Partner if any, 1% to the General Partner and 99% among the Limited Partners, pro rata in accordance with their Percentage Interestssuch special allocations had not occurred. (e) In The General Partners shall make special allocations of Net Income or Net Loss or items of income, gain, loss or deduction to GP Units as may be necessary to permit conversion of such Units to LP Units in accordance with Section 4.1. For purposes of allocating income, gain, loss or deduction to LP Units that were converted from GP Units for periods following such conversion, the event any net gains realized by the Partnership upon the dissolution Units shall be deemed as of the Partnership are insufficient effective date of such conversion to cause have been allocated the Partners' respective Capital Account balances same amount of income, gain, loss and deductions and to be in have received the ratios of their respective Percentage Interests, then, Section 5.04(a) notwithstanding, gross income shall be allocated same distributions as the LP Units outstanding prior to those Partners whose Capital Accounts have balances (after giving effect to the allocations provided in Section 5.05(d)), that are less than the amount required to make all Partners' Capital Account balances be in the ratio of their respective Percentage Interests until all Partners' Capital Account balances are in such ratios; provided, however, that an allocation shall not be made pursuant to this Section 5.05(e) to the extent such allocation would cause or increase a negative balance in any other Partner's Capital Accountconversion. (f) If and to the extent that any Partner makes a payment to the Partnership to pay an expense or cover a loss of the Partnership, or pays an expense of the Partnership, including, without limitation, any organizational expenses incurred in connection with the Reorganization and any costs incurred under the Indemnification and Reimbursement Agreement, and the result is that the Partnership is required deemed to recognize income as a result of any transaction between such Partner and the Partnership pursuant to Section 482, Section 483, Sections 1272-1274 or is entitled to a Section 7872 of the Code, or any similar provision now or hereafter in effect, any corresponding loss or deduction of the Partnership shall be allocated to the Partner who was charged with respect such income. In addition, if all or part of the deductions claimed by the Partnership for compensation to its employees is disallowed, the income attributable to such amount so contributed or paid, then such income, loss or deduction shall disallowed deductions will be specially allocated to the General Partners, and any subsequent deductions related to such Partnercompensation will be specially allocated to the General Partners. (g) In the event that the Internal Revenue Service is successful in asserting an adjustment to the taxable income of a Partner and, as a result of any such adjustment, the Partnership is entitled to a deduction for federal income tax purposes with respect to any portion of such adjustment, such deduction shall be allocated to such Partner. (h) The General Partner may, in its sole discretion and without the approval of any other Partner, make special allocations of Net Income, Net Loss or Depreciation or items thereof (including, but not limited to, gross income) to the extent necessary to make the Capital Account balances of the Partners be in the ratios of their Percentage Interests. In addition to the other special allocations that the General Partner Partners may make under this Section 5.05(h)8.4, to preserve uniformity of Units (subject to the priority distribution rights of certain classes of Units) the General Partner may, in its sole discretion and without the approval of any other Partner, Partners may make special allocations of Net Income, Income or Net Loss or Depreciation (items of income, gain, loss or items thereof) and adopt such other methods and procedures in order to preserve or achieve uniformity of the Partnership Interestsdeduction, but only if such allocations and methods and procedures would not have a material adverse effect on the Partners holding Unitholders (other than the Partnership Interests General Partners) and if they are consistent with the principles of Section 704 of the Code. (i) In the event that the Internal Revenue Service is successful in asserting an adjustment to the allocations of Net Income, Net Loss or Depreciation provided for in Sections 5.04 and 5.05 for federal income tax purposes, such adjustment shall not have any effect on Capital Accounts or on the Distributions made or to be made pursuant to the provisions of this Agreement, unless the General Partner determines that giving effect to such adjustment would make the Partners' Capital Account balances be in the proportion of the Percentage Interests.