Common use of Distributable Cash Clause in Contracts

Distributable Cash. (a) Except with respect to payments of Tax Liability Distributions (which shall be mandatory to the extent of Distributable Cash, subject to the proviso at the end of this sentence), to the extent the payment of such distributions does not cause a breach under the terms of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(i), when and if to make a distribution of Distributable Cash pursuant to the terms hereof. (b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions of Distributable Cash) shall be distributed among all the Members in accordance with the following order of priority: (i) until there has been a Changeover Event, to the Common Members pro rata among such Members in proportion to their Common Unit Percentage; and (ii) after the occurrence of a Changeover Event: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and (B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage. (c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed pursuant to this Section 5.2(c) shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For purposes of this Agreement, a Common Member’s “Annual Tax Liability” means the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 of the Code allocated to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed to the Members, with such estimates being trued up in connection with the payment of the annual Tax Liability Distribution.

Distributable Cash. (a) Except with respect The Partnership intends from time to payments of Tax Liability Distributions (which shall be mandatory time to the extent make distributions of Distributable Cash, as available and as determined by the General Partner, subject to the proviso at following: (i) the end of this sentence), General Partner shall use commercially reasonable efforts to distribute Distributable Cash to the extent Partners on at least a quarterly basis, subject to any applicable limitations in the Project Documents, (ii) distributions may be restricted or suspended when the General Partner determines in its reasonable judgment that it is in the best interest of the Partnership to do so, (iii) all distributions are subject to the payment of Costs and to the maintenance of reasonable Reserves and (iv) no distribution shall be made if such distribution is prohibited by any of the Project Documents. A Partner receiving a distribution in violation of the foregoing Section 10.1(iv) shall be liable to the Partnership for return of the amount of the distribution without regard to the date of the distribution or the date of the discovery of the violation, whether or not such Partner remains a Partner and without regard to any other facts or circumstances. Subject to the foregoing, except as provided in Section 19.2(d) hereof (relating to distributions does not cause a breach under upon the terms dissolution of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(iPartnership), when and if Section 11.8(b) (relating to make a distribution special allocations of Distributable Cash pursuant while the Tracking Account Loan is outstanding), Section 11.12(b) (relating to the terms hereof. (b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions special allocations of Distributable Cash received in connection with any Niagara Mohawk Proceeding) and Section 11.12(d) (relating to special allocations of Distributable Cash received in connection with the recovery of all or a portion of the Casualty Insurance Claim Receivable), Distributable Cash) , if any, shall be distributed among all the Members in accordance with the following order of priority: (i) until there has been a Changeover Event, to the Common Members pro rata among such Members Partners in proportion to their Common Unit Percentagethen existing Percentage Interests; and (ii) after PROVIDED, HOWEVER, that any Distributable Cash otherwise allocable to one or more of the occurrence of a Changeover Event: (A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and (B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage. (c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed Partners pursuant to this Section 5.2(c) 10.1 but which is disbursed by the Partnership to a Curing Credit Support Party as a result of, and to the extent of, the outstanding balance of any amounts due to the Curing Credit Support Party on account of a Credit Support Loan under the Credit Support Agreement, as required by Section 11.13 hereof, shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For treated for all purposes of this Agreement, a Common Member’s “Annual Tax Liability” means including for purposes of adjusting the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 respective Capital Accounts of the Code allocated Partners pursuant to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist Section 11.1(b), as having been distributed by the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed Partnership to the MembersPartner or Partners, with such estimates being trued up in connection as the case may be, that are Affiliated with the payment of the annual Tax Liability DistributionCredit Support Defaulting Party.