Excess elective deferrals shall be adjusted for any income or loss. For taxable years beginning on or after ​, the income or loss allocable to excess elective deferrals allocated to each participant is the income or loss allocable to the participant's elective deferral account for the taxable year multiplied by a fraction, the numerator of which is such participant's excess elective deferrals for the year and the denominator is the participant's account balance attributable to elective deferrals without regard to any income or loss occurring during such taxable year. Effective solely for the taxable year beginning on or after ​, and to the extent the excess elective deferrals were credited with gain or loss as of an accounting date within the gap period (i.e., the period after the close of the taxable year and prior to the distribution), allocable income or loss also includes 10% of the amount determined under the preceding sentence multiplied by the number of whole calendar months between the end of the participant’s taxable year and the date of distribution, counting the month of distribution if distribution occurred after the 15th of such month.

Net Income and Net Loss. After giving effect to the special allocations set forth in [Section 6.1(b)], if there is Net Income remaining for a taxable period, the remaining Net Income shall be allocated among the Partners so as to reduce proportionately (based on the amounts that need to be reduced) the differences between their respective Target Capital Account Balances and Partially Adjusted Capital Account Balances for the taxable period. After giving effect to the special allocations set forth in [Section 6.1(b)], if there is Net Loss remaining for a taxable period, the remaining Net Loss shall be allocated among the Partners so as to reduce proportionately (based on the amounts that need to be reduced) the differences between their respective Partially Adjusted Capital Account Balances and Target Capital Account Balances for the taxable period. If in the fiscal period of liquidation of the Company or in the fiscal period of the sale of substantially all of its assets, at least one Partner has a Targeted Capital Account Balance in excess of its Partially Adjusted Capital Account Balance or at least one Partner has a Partially Adjusted Capital Account Balance in excess of its Targeted Capital Account Balance, the General Partner may apply the foregoing provisions by allocating items of income and gain taken into account in determining Net Income or Net Loss (other than items allocated pursuant to [Section 6.1(b)]) in lieu of Net Income and by allocating items of loss and deduction taken into account in determining Net Income or Net Loss (other than items allocated pursuant to [Section 6.1(b)]) in lieu of Net Loss.

proceeds from business interruption insurance (to the extent not reflected as revenue or income in Consolidated Net Income and to the extent that the related loss was deducted in the determination of Consolidated Net Income),

Determination of Income or Loss – Excess aggregate contributions shall be adjusted for any income or loss. For plan years beginning on or after ​, the income or loss allocable to excess aggregate contributions allocated to each participant is the income or loss allocable to the participant's employee nondeductible contribution account, employer matching contribution account (if any, and if all amounts therein are not used in the ADP test) and, if applicable, qualified nonelective contribution account and elective deferral account(s) for the plan

Computation of Income, Gain, Loss and Deduction Items. For purposes of computing the amount of any item of the Company income, gain, loss or deduction to be allocated pursuant to [Article IV] and to be reflected in the Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S.federal income Tax purposes (including any method of depreciation, cost recovery or amortization used for this purpose); provided that:

“Consolidated Net Income” means, at any date of determination, the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period calculated in accordance with GAAP.

Net Loss. Net Loss of the Partnership with respect to any fiscal period shall mean that excess of all operating expenses for such period over the gross sales for such period, as those terms are defined herein, determined on an accrual basis and determined without regard to amounts deducted by the Partnership for cost recovery of tangible assets or amortization of capitalized expenditures or other capital accounts.

Uninsured Loss. There shall occur any uninsured damage to or loss, theft, or destruction with respect to any portion of any property or assets of a Borrower which is reasonably likely to result in a Material Adverse Effect.

any income (loss) attributable to deferred compensation plans or trusts,

“Consolidated Net Income” means, at any date of determination, the net income (or loss) of the Borrower and its Subsidiaries on a Consolidated basis for the most recently completed Measurement Period, determined in accordance with GAAP; provided that Consolidated Net Income shall exclude # non-cash extraordinary gains and extraordinary losses for such Measurement Period, # the net income of any Subsidiary during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Applicable Law applicable to such Subsidiary during such Measurement Period, except that the Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, and # any income (or loss) for such Measurement Period of any Person if such Person is not a Subsidiary, except that the Borrower’s equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the net amount of cash actually received by the Borrower or a Subsidiary from such Person during such Measurement Period as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower as described in [clause (b)] of this proviso).

any net after-tax income or loss from discontinued operations and any net after-tax gain or loss on disposal of discontinued operations shall be excluded,

Consolidated Operating Profit (or Loss)

consolidated operating profit (or loss) identified as such on the Company’s income statement for such period determined in accordance with GAAP:

“Net Income” means, for any period, the net income (or loss) attributable to the Growth Projects on a consolidated basis determined in conformity with GAAP.

. Senior Funded Debt to EBITDA Ratio not greater than 2.50 to 1.00 at any time, calculated as of each fiscal quarter end, commencing with the fiscal quarter ending ​, determined on a rolling 4-quarter basis. As used herein, # “Senior Funded Debt” means Funded Debt, but excluding any debt that is contractually subordinated in right of payment to the Line of Credit, either Term Loan or any outstanding borrowings thereunder, and # “EBITDA” means consolidated net income determined in accordance with GAAP, consistently applied, less income or plus loss from discontinued operations and extraordinary items, plus income taxes, plus interest expense, plus depreciation, depletion, and amortization, all to the extent included in the determination of consolidated net income.

any income or gain of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss;

federal, state and other income taxes deducted in the determination of Consolidated Net Income, plus

DTC Eligibility & Market Loss. If the Borrower fails to maintain its status as “DTC Eligible” for any reason, or, if the Conversion Price is less than ​ at any time while this Note is outstanding, the principal amount of the Note shall increase by ​ (under Holder’s and Borrower’s expectation that any principal amount increase will tack back to the Issue Date). In addition, the Variable Conversion Price shall be redefined to mean forty percent (40%) multiplied by the Market Price, subject to adjustment as provided in this Note.

Code §165 (determined without regard to whether the loss exceeds 10% of adjusted gross income).