Common use of Performance Allocation Clause in Contracts

Performance Allocation. (a) The Performance Allocation shall be debited against the Capital Account of each Participant (other than TP GP) and credited to the Capital Account of TP GP as of the last day of each Fiscal Year. If a Participant withdraws all or a portion of its Capital Account other than at the end of a Fiscal Year, the Performance Allocation accrued and attributable to the portion withdrawn will be debited against such Participant’s Capital Account and credited to TP GP’s Capital Account at the time of withdrawal. For the avoidance of doubt, for purposes of this Section 3.8(a), to the extent that the Joint Venture holds any of a Participant’s assets in a Trust Account, increases or decreases of such assets held in a Trust Account shall not be included in the calculation of the Performance Allocation with respect to such Participant. (b) TP GP, in its sole discretion, may waive or reduce the Performance Allocation. TP GP and Third Point may elect, prior to the commencement of each Fiscal Year, to restructure the Performance Allocation as a performance fee to Third Point with the same terms as the Performance Allocation. (c) For the avoidance of doubt, notwithstanding the expiration of the original term of the Original Agreement, the amendment and restatement of the Original Agreement shall not be considered a withdrawal and contribution with respect to the determination of the Performance Allocation and Loss Recovery Account and the Loss Recovery Account shall not be adjusted on the Effective Date in connection with the amendment and restatement of the Original Agreement.