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Adjusted Capital Account deficit after all other allocations
provided for in this Section 10.2 have been tentatively
made as if this Section 10.2(d) were not in the
Agreement. This Section 10.2(d) is intended to comply
with the qualified income offset requirement in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(3)
and shall be interpreted consistently therewith.
(e) Gross Income Allocation. If any Partner has a deficit
Adjusted Capital Account at the end of any Partnership
Fiscal year, such Partner shall be specially
allocated items of Partnership income and gain in the
amount of such excess as quickly as possible, provided
that an allocation pursuant to this Section 10.2(e)
shall be made only if and to the extent that such Partner
would have an Adjusted Capital Account deficit in
excess of such amount after all other allocations provided
for in this Section 10.2 have been tentatively
made as if Section 10.2(c), Section 10.2(d) and this
Section 10.2(e) were not in the Agreement.
(f) Nonrecourse Deductions. Any “Nonrecourse Deductions”
as defined in Treasury Regulations Section
1.704-2(c) for any Fiscal year or other period shall be
specially allocated as items of loss to the Partners, pro
rata, in proportion to their respective Percentage Interests.
(g) Partner Nonrecourse Deductions. Any “Partner
Nonrecourse Deductions” (as defined in Treasury Regulations
Section 1.704-2(i)(2)) for any Fiscal year or
other period shall be specially allocated to the Partner
who bears the economic risk of loss (within the meaning
of Treasury Regulations Section 1.752-2) with respect
to the Partner Nonrecourse Debt to which such
Partner Nonrecourse Deductions are attributable in accordance
with Treasury Regulations Section 1.704-2(i).
(h) Code Section 754 Adjustment. To the extent any
adjustment to the adjusted tax basis of any asset of the
Partnership pursuant to Code Section 734(b) or Code
Section 743(b) is required, pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount
of such adjustment shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or
loss (if the adjustment decreases such basis), and such
gain or loss shall be specially allocated to the Partners
in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant
to Treasury Regulations Section 1.704-1(b)(2)(iv)(m).
10.3 Item Prorations. Any fiscal year of the Partnership
in which the Partnership realizes any Gain on Sale
shall be divided into multiple accounting periods, the
first of which shall begin on the first day of such fiscal
year and shall end on the Sale Date, and the second of
which shall begin on the day following such Sale Date
and shall end on the following Sale Date, if any, and if
no further Sale Date occurs, then on the last day of
such fiscal year. Any Net Income realized by the Part-
nership in any of such accounting periods shall be allocated
to the Partners in the manner provided in
Section 10.1 hereof as if such accounting period were
a complete fiscal year of the Partnership. Any Net
Loss, depreciation, amortization or cost recovery deductions
incurred by the Partnership in any of such accounting
periods shall be allocated to the Partners in
the manner provided in Sections 10.1 hereof as if such
accounting period were a complete fiscal year of the
Partnership.
10.4 Allocations in Respect to Transferred Units. If any
Units are transferred during any fiscal year, all items
attributable to such Units for such year shall be allocated
between the transferor and the transferee by taking
into account their varying interests during the
year in accordance with Section 706(d) of the Code,
utilizing any conventions permitted by law and selected
by the General Partner, in its sole and absolute
discretion. Solely for purposes of making such allocations,
the Partnership shall recognize the transfer of
such Units as of the end of the calendar quarter during
which it receives written notice of such transfer, provided
that if the Partnership does not receive a written
notice stating the date such Units were transferred and
such other information as may be required by this
Agreement or as the General Partner may reasonably
require within thirty (30) days after the end of the year
during which the transfer occurs, then all such items
shall be allocated to the Person who, according to the
books and records of the Partnership, on the last day of
the year during which the transfer occurs, was the
owner of the Units. The General Partner and the Partnership
shall incur no liability for making allocations
in accordance with the provisions of this Section 10.4,
whether or not the General Partner or the Partnership
have knowledge of any transfer of ownership of any
Units.
10.5 Allocations in Respect to Repurchased Units. If
any Units are repurchased pursuant to Section 8.11 hereof
during any fiscal year, all items attributable to
such Units for such year shall be determined by the
General Partner (a) pro rata with respect to the number
of months such Units were outstanding during such
year, (b) on the basis of an interim closing of the Partnership
books, or (c) in accordance with any other method
established by the General Partner in accordance
with applicable provisions of the Code and Treasury
Regulations.
10.6 Alternative Allocations. If the General Partner determines
that is advantageous to the business of the
Partnership to amend the allocation provisions of this
Agreement so as to permit the Partnership to avoid the
characterization of Partnership income allocable to various
qualified plans, IRAs and other entities which are
exempt from federal income taxation (“Tax Exempt
Partners”) as constituting Unrelated Business Taxable
Income (“UBTI”) within the meaning of the Code, spe-
cifically including, but not limited to, amendments to
satisfy the so called “fractions rule” contained in Code
Section 514(c)(9), the General Partner is authorized, in
its discretion, to amend this Agreement so as to allocate
income, gain, loss, deduction or credit (or items
thereof) arising in any year differently than as provided
for in this Article if, and to the extent, that such
amendments will achieve such result or otherwise permit
the avoidance of characterization of Partnership income
as UBTI to Tax Exempt Partners. Any allocation
made pursuant to this Section 10.6 shall be deemed to
be a complete substitute for any allocation otherwise
provided for in this Agreement, and no further amendment
of this Agreement or approval by any Limited
Partner shall be required to effectuate such allocation.
In making any such allocations under this Section 10.6
(“New Allocations”), the General Partner is authorized
to act in reliance upon advice of counsel to the Partnership
or the Partnership’s regular certified public accountants
that, in their opinion, after examining the
relevant provisions of the Code and any current or future
proposed or final Treasury Regulations thereunder,
the New Allocation will achieve the intended result
of this Section 10.6.
New Allocations made by the General Partner in reliance
upon the advice of counsel or accountants as described
above shall be deemed to be made in the best
interests of the Partnership and all of the Partners, and
any such New Allocations shall not give rise to any
claim or cause of action by any Partner against the
Partnership or any General Partner. Nothing herein
shall require or obligate the General Partner, by implication
or otherwise, to make any such amendments or
undertake any such action.
10.7 No less than once per month, the Partnership and
the General Partner shall estimate the Net Income and
Net Loss allocable to each Partner based on such Partner’s
Units for such month, and shall determine the estimated
U.S. federal, state, and local taxes that may be
imposed on such Partner as a result of including the
Partnership’s Net Income and Net Loss in the taxable
income of such Partner. In determining the estimated
U.S. federal, state, and local income taxes payable by
any given Partner, the Partnership and the General
Partner shall be entitled to assume a uniform income
tax rate applicable to all Partners, which tax rate shall
be no less than the highest U.S. federal income tax rate
for individuals (which rate equals 35% as of the date
of this Agreement). Upon determining the estimated
U.S. federal, state, and local income taxes for each
Partner, the Partnership and the General Partner are
hereby authorized and obligated to withhold from the
Net Income or Net Loss allocable to a Partner such estimated
U.S. federal, state, and local income tax
amount (such amounts, a “Withholding Tax” or the
“Withholding Taxes”) and either: (1) distribute such
Withholding Tax to the Partner or (2) if and to the extent
required by applicable federal, state, local, or in-
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