Operating Profits. Except as provided in Section 13.2(c), Operating Profits of the Partnership shall be allocated between the GE Capital Limited Partner and the Other Partners as follows: (a) First, to the GE Capital Limited Partner and the Other Partners so as to match Distributable Cash received by such Partners over the term of the Partnership pursuant to Sections 4.3(a), 4.7 and 13.2(c) (treating (i) any amounts treated as guaranteed payments to the GE Capital Limited Partner under the last sentence of Section 4.15 and (ii) any amounts transferred to the GE Capital Limited Partner pursuant to Section 4.2(a) or (b) of the Amended and Restated Security Deposit Agreement as other than distributions of Distributable Cash, which are not to be matched with allocations of Operating Profits). The ratio in which Operating Profits are allocated pursuant to this Section 5.1 (a) for any given year shall equal the ratio of the excesses, with respect to the GE Capital Limited Partner and the Other Partners, of Distributable Cash received during the term of the Partnership pursuant to such Sections over Operating Profits previously allocated pursuant to this Section 5.1(a) during the term of the Partnership. (b) Second, 100% to the GE Capital Limited Partner, out of Operating Profits that would otherwise have been allocated to the Other Partners, until it has been allocated on a cumulative basis an amount of Operating Profits pursuant to this Section 5.1(b) equal to the aggregate amount of Distributable Cash it has received over the term of the Partnership pursuant to Section 4.12. (c) Third, 99% to the Other Partners and 1% to the GE Capital Limited Partner until the Partners have been allocated on a cumulative basis an amount of Operating Profits equal to the aggregate amount of Distributable Cash received over the term of the Partnership pursuant to Section 4.3(b) and to Sections 4.11, 4.13 and 4.14 (to the extent they relate to distributions that would otherwise be made pursuant to Section 4.3(b)), for this purpose treating any Distributable Cash deposited (and not distributed in the same year) in the Senior Debt Service Account, the Base Reserve Account, the Letters of Credit Reserve Account, the Distribution Reserve Account and the Retention Account from amounts otherwise distributable pursuant to Section 4.3(b) as having been distributed to the Other Partners in the proportions such amounts would have been distributed to the Other Partners if actually distributed. (d) Fourth, 85% to the Other Partners and 15% to the GE Capital Limited Partner until the Partners have been allocated on a cumulative basis pursuant to this Section 5.1(d) an amount of Operating Profits equal to the aggregate amount of Distributable Cash received over the term of the Partnership pursuant to Section 4.4 and Sections 4.13 and 4.14 (to the extent they relate to distributions that would otherwise be made pursuant to Section 4.4). (e) Fifth, 95% to the Other Partners and 5% to the GE Capital Limited Partner until the Partners have been allocated on a cumulative basis an amount of Operating Profits equal to the aggregate amount of Distributable Cash received over the term of the Partnership pursuant to Section 4.5 and Sections 4.13 and 4.14 (to the extent they relate to distributions that would otherwise be made pursuant to Section 4.5). (f) Sixth, prior to the Second Capital Contribution Date, 73% to the GE Capital Limited Partner and 27% to the Other Partners, and thereafter, until the earlier of the taxable year that includes the First GE Capital Flip Date and the taxable year that includes the fourteenth anniversary of the Second Capital Contribution Date, to the extent Operating Profits in any taxable year exceed the amounts to be allocated pursuant to paragraphs (a) through (f) above, the excess to the GE Capital Limited Partner and the Other Partners in accordance with the relative Capital Contributions of the GE Capital Limited Partner and the Tomen Limited Partners (reducing the GE Capital Limited Partner's Capital Contribution by any amount received as a distribution pursuant to Section 4.6(a) and ignoring any Capital Contribution of SECI); provided, however, that, subject to the succeeding proviso, the allocation of such excess Operating Profits shall not be less than 73% to the GE Capital Limited Partner or more than 27% to the Other Partners, and provided further that notwithstanding the 73%/27% limitation the Other Partners will be allocated an amount of such Operating Profits that would otherwise be allocated to the GE Capital Limited Partner in an amount, on a cumulative basis pursuant to this Section 5.1(f), equal to the amount, if any, of Depreciation with respect to the Noncontributed Assets that has been allocated to the Other Partners pursuant to Section 5.3(c), in the first year or years that the amount of Operating Profits in excess of Distributable Cash allocated to the GE Capital Limited Partner pursuant to this paragraph (f) would exceed the amount necessary for the GE Capital Limited Partner to have sufficient Capital Account to utilize the Depreciation to be allocated to the GE Capital Limited Partner for such year or years pursuant to Section 5.3(b)(i). (g) Seventh, notwithstanding paragraphs (a) through (f) hereof, beginning in the earlier of the taxable year that includes the First GE Capital Flip Date and the taxable year that includes the fourteenth anniversary of the Second Capital Contribution Date, Operating Profits, to the extent necessary after taking into account the allocation of Depreciation pursuant to Section 5.3(d), shall be allocated to the GE Capital Limited Partner and the Other Partners so that, if the Partnership were to liquidate at the end of the year with respect to which the allocations are being made, to the extent possible, the Capital Accounts of the GE Capital Limited Partner and the Other Partners would be in ratios that correspond to the relative amounts to which the GE Capital Limited Partner and the Other Partners would be entitled if the remaining assets of the Partnership were distributed in payment of (i) any amounts not distributed pursuant to Section 4.3(a) and then (ii) the amounts described in Section 4.4 and then (iii) the amounts described in Section 4.5.
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Operating Profits. Except as provided in Section 13.2(c), Operating Profits of the Partnership accuring ----------------- after the Second Capital Contribution Date shall be allocated between among the GE Capital Limited Partner and the Other Partners as follows:
(a) Firstthe Preferred Limited Partnership Interest is treated for federal income tax purposes as other than a partnership distribution under Code Section 731, no amount of Operating Profits shall be allocated to the GE Capital Preferred Limited Partner pursuant to this subsection with respect to such distribution, but the Common Limited Partner and the Other Partners so as to match Distributable Cash received by such Partners over the term General Partner will nonetheless be allocated an amount of the Partnership pursuant to Sections 4.3(a), 4.7 and 13.2(c) (treating (i) any amounts treated as guaranteed payments Operating Profits equal to the GE Capital Limited Partner under the last sentence of Section 4.15 and (ii) any amounts transferred to the GE Capital Limited Partner pursuant to Section 4.2(a) or (b) of the Amended and Restated Security Deposit Agreement as other than distributions of Distributable Cash, which are amount they would have been allocated if this proviso had not to be matched with allocations of Operating Profits). The ratio been in which Operating Profits are allocated pursuant to this Section 5.1
(a) for any given year shall equal the ratio of the excesses, with respect to the GE Capital Limited Partner and the Other Partners, of Distributable Cash received during the term of the Partnership pursuant to such Sections over Operating Profits previously allocated pursuant to this Section 5.1(a) during the term of the Partnershipeffect.
(b) Second, to the extent Operating Losses have been allocated pursuant to subsection 5.3(b) hereof, proportionately to the Preferred Limited Partner and the Common Limited Partner to the extent of such Operating Losses.
(c) Third, 100% to the GE Capital Preferred Limited Partner or the Common Limited Partner, out of Operating Profits that would otherwise have been allocated to as the Other Partnerscase may be, until it such Limited Partner has been allocated on a cumulative basis an amount of Operating Profits pursuant to this Section 5.1(bsubsection 5.2(c) equal to the aggregate amount of Distributable Cash it has received over the term of the Partnership pursuant to Section 4.12.
(c) Third, 99% to the Other Partners and 1% to the GE Capital Limited Partner until the Partners have been allocated on a cumulative basis an amount of Operating Profits equal to the aggregate amount of Distributable Cash received over the term of the Partnership pursuant to Section 4.3(b) and to Sections 4.11, 4.13 and 4.14 (to the extent they relate to distributions that would otherwise be made pursuant to Section 4.3(b)), for this purpose treating any Distributable Cash deposited (and not distributed in the same year) in the Senior Debt Service Account, the Base Reserve Account, the Letters of Credit Reserve Account, the Distribution Reserve Account and the Retention Account from amounts otherwise distributable pursuant to Section 4.3(b) as having been distributed to the Other Partners in the proportions such amounts would have been distributed to the Other Partners if actually distributedsubsection 4.6.
(d) Fourth, 8599% to the Other Partners General Partner and 151% to the GE Capital Common Limited Partner until the Partners have General Partner has been allocated on a cumulative basis pursuant to this Section 5.1(dsubsection 5.2(d) an amount of Operating Profits equal to the aggregate amount of Distributable Cash it has received over the term of the Partnership pursuant to Section 4.4 and Sections 4.13 and 4.14 (subsection 4.3(b) hereof; provided, however, -------- ------- that if there is a reduction in the amount of Distributable Cash received by the General Partner pursuant to subsection 4.3(b) by reason of the proviso in such subsection, there shall be a corresponding reduction in the allocation to the extent they relate General Partner pursuant to distributions that would otherwise this subsection 5.2(d), but the allocation to the Common Limited Partner pursuant to this subsection 5.2(d) shall be made pursuant to Section 4.4)as though such reduction had not occurred.
(e) Fifth, 959% to the Other Partners and 5Common Limited Partner, 1% to the GE Capital Preferred Limited Partner and 90% to the General Partner until the Partners have Common Limited Partner has been allocated on a cumulative basis pursuant to this subsection 5.2(e) an amount of Operating Profits equal to the aggregate amount of Distributable Cash it has received over the term of the partnership pursuant to subsection 4.3(c); provided, however, that the -------- ------- proviso in subsection 5.2(a) shall apply to this subsection 5.2(e) as well.
(f) Sixth, 9% to the preferred Limited Partner, 1% to the Common Limited Partner and 90% to the General Partner until the Preferred Limited Partner has been allocated on a cumulative basis pursuant to this subsection 5.2(f) an amount of Operating Profits equal to the aggregate amount of Distributable Cash it has received over the term of the Partnership pursuant to Section 4.5 and Sections 4.13 and 4.14 (to the extent they relate to distributions that would otherwise be made pursuant to Section 4.5).
(f) Sixth, prior to the Second Capital Contribution Date, 73% to the GE Capital Limited Partner and 27% to the Other Partners, and thereafter, until the earlier of the taxable year that includes the First GE Capital Flip Date and the taxable year that includes the fourteenth anniversary of the Second Capital Contribution Date, to the extent Operating Profits in any taxable year exceed the amounts to be allocated pursuant to paragraphs (a) through (f) above, the excess to the GE Capital Limited Partner and the Other Partners in accordance with the relative Capital Contributions of the GE Capital Limited Partner and the Tomen Limited Partners (reducing the GE Capital Limited Partner's Capital Contribution by any amount received as a distribution pursuant to Section 4.6(a) and ignoring any Capital Contribution of SECIsubsection 4.3(d); provided, -------- however, thatthat the proviso in subsection 5.2(a) hereof shall apply to this ------- subsection 5.2(f) as well.
(g) Seventh, subject to the succeeding proviso, the allocation of such excess Operating Profits shall not be less than 7330% to the GE Capital Common Limited Partner or more than 27and 70% to the Other Partners, and provided further that notwithstanding General Partner until the 73%/27% limitation the Other Partners will be allocated an amount of such Operating Profits that would otherwise be allocated to the GE Capital Common Limited Partner in an amount, has been allocated on a cumulative basis pursuant to this Section 5.1(f), subsection 5.2(g) an amount of Operating profits equal to the amountaggregate amount of Distributable Cash it has received over the term of the Partnership pursuant to subsection 4.4(a).
(h) Eighth, if any, of Depreciation with respect 20% to the Noncontributed Assets that Common Limited Partner and 80% to the General Partner until the Common Limited Partner has been allocated to the Other Partners on a cumulative basis pursuant to Section 5.3(c), in the first year or years that the this subsection 5.2(h) an amount of Operating Profits in excess equal to the aggregate amount of Distributable Cash allocated it has received over the term of the Partnership pursuant to subsection 4.4(b) (i) Ninth, 10% to the GE Capital Common Limited Partner and 90% to the General Partner until the Common Limited Partner has been allocated on a cumulative basis pursuant to this paragraph (fsubsection 5.2(i) would exceed the an amount necessary for the GE Capital Limited Partner to have sufficient Capital Account to utilize the Depreciation to be allocated of Operating Profits equal to the GE Capital Limited Partner for such year or years aggregate amount of Distributable Cash it has received over the term of the partnership pursuant to Section 5.3(b)(isubsection 4.4(c).
(g) Seventh, notwithstanding paragraphs (a) through (f) hereof, beginning in the earlier of the taxable year that includes the First GE Capital Flip Date and the taxable year that includes the fourteenth anniversary of the Second Capital Contribution Date, Operating Profits, to the extent necessary after taking into account the allocation of Depreciation pursuant to Section 5.3(d), shall be allocated to the GE Capital Limited Partner and the Other Partners so that, if the Partnership were to liquidate at the end of the year with respect to which the allocations are being made, to the extent possible, the Capital Accounts of the GE Capital Limited Partner and the Other Partners would be in ratios that correspond to the relative amounts to which the GE Capital Limited Partner and the Other Partners would be entitled if the remaining assets of the Partnership were distributed in payment of (i) any amounts not distributed pursuant to Section 4.3(a) and then (ii) the amounts described in Section 4.4 and then (iii) the amounts described in Section 4.5.
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Sources: Limited Partnership Agreement (Cogen Technologies Inc)