Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries. (b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership. (c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 7 contracts
Samples: Tax Receivable Agreement (PF2 SpinCo, Inc.), Tax Receivable Agreement (PF2 SpinCo LLC), Tax Receivable Agreement (Change Healthcare Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated affiliated, consolidated, combined, or consolidated unitary group of corporations that files a consolidated consolidated, combined, or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, or would be eligible to become a member of such a group at the election of one or members of that group, then, subject to the application of the Valuation Assumptions upon a Change of Control: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. income tax Tax purposes) with which such entity does not file a consolidated tax return Tax Return pursuant to Section 1501 of the CodeCode or any provisions of state or local Tax law, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit or Realized Tax Detriment of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. Thus, for example, in determining the Hypothetical Tax Liability of the entity, the taxable income of the entity shall be determined by treating the entity as having sold the asset for its fair market value, recovering any basis applicable to such asset (using the Tax basis that such asset would have had at such time if no Basis Adjustments had been made), while the Actual Tax Liability of the entity would be determined by recovering the actual Tax basis of the asset that reflects any Basis Adjustments. For purposes of this Section 7.117.13, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
. If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a partnership (c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated a Person classified as a corporation partnership for federal income tax purposes or (ii) either Tax purposes), the principles of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c7.13(b) and this Agreement shall not apply if govern the Corporate Taxpayer is unable treatment of such transfer and any subsequent allocations of income, gain, loss or deductions from such partnership to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Datesuch entity.
Appears in 5 contracts
Samples: Tax Receivable Agreement (AdaptHealth Corp.), Merger Agreement (DFB Healthcare Acquisitions Corp.), Tax Receivable Agreement (Carvana Co.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) EBS Holdco I I, LLC, (“Holdco I”) or EBS Holdco II II, LLC (“Holdco II”) to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 5 contracts
Samples: Tax Receivable Agreement (PF2 SpinCo, Inc.), Tax Receivable Agreement (Change Healthcare Inc.), Tax Receivable Agreement (Change Healthcare Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an a combined, consolidated, affiliated or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the relevant group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated (or combined or unitary, where applicable) taxable income income, gain, loss, deduction and attributes of the relevant group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If the Corporate Taxpayer (or any other entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder hereunder), Solaris LLC or any of Solaris LLC’s direct or indirect Subsidiaries that is treated as a partnership or disregarded entity for U.S. federal income tax purposes (but only to the extent such Subsidiaries are not held through any entity treated as a corporation for U.S. federal income tax purposes) (a “Transferor”) transfers one or more assets Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity the Transferor does not file a consolidated tax return Tax Return pursuant to Section 1501 of the Code, such entitythe Transferor, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset Reference Assets in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity the Transferor shall be equal to the fair market value of the contributed assettransferred Reference Assets, plus, without duplication, (i) the amount of debt to which any such Reference Asset is subject, in the case of a transfer of an encumbered Reference Asset or (ii) the amount of debt allocated to any such Reference Asset, in the case of a contribution of a partnership interest. For purposes of this Section 7.117.12(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partnerTransferor’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 5 contracts
Samples: Tax Receivable Agreement (Aris Water Solutions, Inc.), Tax Receivable Agreement (Aris Water Solutions, Inc.), Tax Receivable Agreement
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If the Corporate Taxpayer (or any entity member of a group described in Section 7.11(a)) transfers or is deemed to transfer any Unit or any Reference Property to a transferee that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified treated as a corporation for U.S. United States federal income tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property, then the Corporate Taxpayer shall cause such transferee to assume the obligation to make payments hereunder with respect to the applicable Tax Attributes associated with any Reference Property or interest therein acquired (directly or indirectly) in such transfer (taking into account any gain recognized in the transaction) in a manner consistent with the terms of this Agreement as the transferee (or one of its Affiliates) actually realizes Tax benefits from the Tax Attributes. If OpCo transfers (or is deemed to transfer for United States federal income tax purposes) with any Reference Property to a transferee that is treated as a corporation for United States federal income tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such entity does not file a consolidated tax return pursuant to Section 1501 of the Codetransferor’s basis in such property, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, OpCo shall be treated as having disposed of such asset the Reference Property in a fully wholly taxable transaction on the date of such contributiontransaction. The consideration deemed to be received by such entity OpCo in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset. For purposes , plus (i) the amount of this Section 7.11debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest interest. If any member of a group described in Section 7.11(a) that owns any Unit deconsolidates from the group (or the Corporate Taxpayer deconsolidates from the group), then the Corporate Taxpayer shall be treated as a transfer cause such member (or the parent of the transferring partner’s share consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to assume the obligation to make payments hereunder with respect to the applicable Tax Attributes associated with any Reference Property it owns (directly or indirectly) in a manner consistent with the terms of each this Agreement as the member (or one of its Affiliates) actually realizes Tax benefits. If a transferee or a member of a group described in Section 7.11(a) assumes an obligation to make payments hereunder pursuant to either of the assets and liabilities foregoing sentences, then the initial obligor is relieved of that partnershipthe obligation assumed.
(c) Until twelve months following If the consummation Corporate Taxpayer (or any member of a group described in Section 7.11(a)) transfers (or is deemed to transfer for United States federal income tax purposes) any Unit in a transaction that is wholly or partially taxable, then for purposes of calculating payments under this Agreement, OpCo shall be treated as having disposed of the Medifax Restructuringportion of any Reference Property that is indirectly transferred by the Corporate Taxpayer (i.e., Parent taking into account the number of Units transferred) in a wholly or partially taxable transaction in which all income, gain or loss is allocated to the Corporate Taxpayer. The consideration deemed to be received by OpCo shall not cause be equal to the fair market value of the deemed transferred asset, plus (i) Holdco I or Holdco II the amount of debt to mergewhich such asset is subject, liquidate or change its current election to be treated as in the case of a corporation for federal income tax purposes transfer of an encumbered asset or (ii) either the amount of Holdco I or Holdco II debt allocated to distribute their respective interests such asset, in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within case of a reasonable period transfer of time not to be less than nine months from the Closing Datea partnership interest.
Appears in 5 contracts
Samples: Tax Receivable Agreement (Ryan Specialty Holdings, Inc.), Tax Receivable Agreement (Clearwater Analytics Holdings, Inc.), Tax Receivable Agreement (Clearwater Analytics Holdings, Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. United States federal income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity shall be equal to the gross fair market value of the contributed transferred asset. For purposes of this Section 7.117.11(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
partnership allocated to such partner. If any member of a group described in Section 7.11(a) that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder deconsolidates from the group (c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable deconsolidated from the group), then the Corporate Taxpayer shall cause such member (or the parent of the consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to obtain assume the legal opinion referred obligation to make Tax Benefit Payments in a manner consistent with the terms of its Agreement as the member actually realizes such Tax Benefits. If a member of a group described in Section 6.4(a7.11(a) within a reasonable period assumes an obligation to make Tax Benefit Payments hereunder, then the initial obligor is relieved of time not to be less than nine months from the Closing Date.obligation assumed
Appears in 4 contracts
Samples: Tax Receivable Agreement, Tax Receivable Agreement (Repay Holdings Corp), Tax Receivable Agreement (Thunder Bridge Acquisition LTD)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If the Corporate Taxpayer (or any entity member of a group described in Section 7.11(a)) transfers or is deemed to transfer any Unit or any Reference Asset to a transferee that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified treated as a corporation for U.S. federal income tax Tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property, then the Corporate Taxpayer shall cause such transferee to assume the obligation to make payments hereunder with respect to the applicable Tax Attributes associated with any Reference Asset or interest therein acquired (directly or indirectly) in such transfer (taking into account any gain recognized in the transaction) in a manner consistent with the terms of this Agreement as the transferee (or one of its Affiliates) actually realizes Tax benefits from the Tax Attributes. If OpCo transfers (or is deemed to transfer for U.S. federal income Tax purposes) with any Reference Asset to a transferee that is treated as a corporation for U.S. federal income Tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such entity does not file a consolidated tax return pursuant to Section 1501 of the Codetransferor’s basis in such property, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, OpCo shall be treated as having disposed of such asset the Reference Asset in a fully wholly taxable transaction on the date of such contributiontransaction. The consideration deemed to be received by such entity OpCo in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset. For purposes , plus (i) the amount of this Section 7.11debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest interest. If any member of a group described in Section 7.11(a) that owns any Unit deconsolidates from the group (or the Corporate Taxpayer deconsolidates from the group), then the Corporate Taxpayer shall be treated as a transfer cause such member (or the parent of the transferring partner’s share consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to assume the obligation to make payments hereunder with respect to the applicable Tax Attributes associated with any Reference Asset it owns (directly or indirectly) in a manner consistent with the terms of each this Agreement as the member (or one of its Affiliates) actually realizes Tax benefits. If a transferee or a member of a group described in Section 7.11(a) assumes an obligation to make payments hereunder pursuant to either of the assets and liabilities foregoing sentences, then the initial obligor is relieved of that partnershipthe obligation assumed.
(c) Until twelve months following If the consummation Corporate Taxpayer (or any member of a group described in Section 7.11(a)) transfers (or is deemed to transfer for U.S. federal income Tax purposes) any Unit in a transaction that is wholly or partially taxable, then for purposes of calculating payments under this Agreement, OpCo shall be treated as having disposed of the Medifax Restructuringportion of any Reference Asset that is indirectly transferred by the Corporate Taxpayer (i.e., Parent taking into account the number of Units transferred) in a wholly or partially taxable transaction in which all income, gain or loss is allocated to the Corporate Taxpayer. The consideration deemed to be received by OpCo shall not cause be equal to the fair market value of the deemed transferred asset, plus (i) Holdco I or Holdco II the amount of debt to mergewhich such asset is subject, liquidate or change its current election to be treated as in the case of a corporation for federal income tax purposes transfer of an encumbered asset or (ii) either the amount of Holdco I or Holdco II debt allocated to distribute their respective interests such asset, in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within case of a reasonable period transfer of time not to be less than nine months from the Closing Datea partnership interest.
Appears in 4 contracts
Samples: Tax Receivable Agreement (Weber Inc.), Tax Receivable Agreement (Weber Inc.), Tax Receivable Agreement (Bumble Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; whole and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. United States federal income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the CodeCode or any corresponding provisions of state, local or foreign law (including as a result of any series of transactions or acts), such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity shall be equal to the gross fair market value of the contributed transferred asset. For purposes of this Section 7.117.11(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
. If any member of a group described in Section 7.11(a) that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder deconsolidates from the group (c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable deconsolidated from the group), then the Corporate Taxpayer shall cause such member (or the parent of the consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to obtain assume the legal opinion referred obligation to make Tax Benefit Payments in a manner consistent with the terms of this Agreement as the member actually realizes such Tax Benefits. If a member of a group described in Section 6.4(a7.11(a) within a reasonable period assumes an obligation to make Tax Benefit Payments hereunder, then the initial obligor is relieved of time not to be less than nine months from the Closing Dateobligation assumed.
Appears in 3 contracts
Samples: Tax Receivable Agreement (Snap One Holdings Corp.), Tax Receivable Agreement (Snap One Holdings Corp.), Tax Receivable Agreement (Snap One Holdings Corp.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file whole (including, for the avoidance of doubt, by treating any direct or indirect transfer of one or more Reference Assets or Common Units to a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of corporation with which the Corporate Taxpayer was the common parent prior files a consolidated Tax Return pursuant to Parent’s acquisition Section 1501 of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended Code as an Exchange which gives rise to include Medifax-EDI Holding Company and its subsidiariesa Basis Adjustment).
(b) If the Corporate Taxpayer (or any entity that is obligated to make member of a Tax Benefit Payment or Early Termination Payment hereunder group described in Section 7.11(a)) transfers one or more assets Reference Assets to a corporation (or a Person classified treated as a corporation for U.S. federal income tax purposes) purposes (with which such entity the Corporate Taxpayer does not file a consolidated tax return Tax Return pursuant to Section 1501 of the Code), such entitytransferor, for purposes of calculating the amount of any Tax Benefit Benefits Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity the Corporate Taxpayer, shall be equal to the fair market value of the contributed transferred asset plus the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset. For purposes of this Section 7.117.11(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s applicable share of each of the assets and liabilities of that partnership.
. Notwithstanding anything to the contrary set forth herein, if the Corporate Taxpayer or any member of a group described in Section 7.11(a) transfers its assets pursuant to a transaction that qualifies as a “reorganization” (cwithin the meaning of Section 368(a) Until twelve months following the consummation of the Medifax RestructuringCode) in which such entity does not survive or pursuant to any other transaction to which Section 381(a) of the Code applies (other than any such reorganization or any such other transaction, Parent shall in each case, pursuant to which such entity transfers assets to a corporation with which the Corporate Taxpayer or any member of the group described in Section 7.11(a) (other than any such member being transferred in such reorganization or other transaction) does not file a consolidated Tax Return pursuant to Section 1501 of the Code), the transfer will not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election such entity to be treated as having transferred any assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes or (iipurposes) either of Holdco I or Holdco II pursuant to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date7.11(b).
Appears in 3 contracts
Samples: Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.), Tax Receivable Agreement (Clear Secure, Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If (x) any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the CodeCode and (y) such transfer was not made with a principal purpose of increasing or accelerating any Tax Benefit Payments hereunder, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause If (ix) Holdco I OpCo transfers (or Holdco II is deemed to merge, liquidate or change its current election transfer for United States federal income Tax purposes) any Reference Asset to be a transferee that is treated as a corporation for United States federal income tax Tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property and (y) such transfer was not made with a principal purpose of increasing or accelerating any Tax Benefit Payments hereunder, OpCo shall be treated as having disposed of the Reference Asset in a wholly taxable transaction. The consideration deemed to be received by OpCo in a transaction contemplated in the prior sentence shall be equal to the fair market value of the deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) either the amount of Holdco I debt allocated to such asset, in the case of a transfer of a partnership interest.
(d) If any member of a group described in Section 7.11(a) that owns any Common Unit deconsolidates from the group (or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable deconsolidates from the group), then the Corporate Taxpayer shall cause such member (or the parent of the consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to obtain assume the legal opinion referred obligation to make payments hereunder with respect to the Basis Adjustments, Section 704(c) Benefits and Imputed Interest associated with any Reference Asset it owns (directly or indirectly) in a manner consistent with the terms of this Agreement as the member (or one of its Affiliates) actually realizes Tax benefits. If a transferee or a member of a group described in Section 6.4(a7.11(a) within a reasonable period assumes an obligation to make payments hereunder pursuant to either of time not to be less than nine months from the Closing Dateforegoing sentences, then the initial obligor is relieved of the obligation assumed.
Appears in 3 contracts
Samples: Tax Receivable Agreement (Rocket Companies, Inc.), Tax Receivable Agreement (Rocket Companies, Inc.), Tax Receivable Agreement (Rocket Companies, Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated affiliated, consolidated, combined or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated consolidated, combined or unitary taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that Person the income of which is obligated to make a Tax Benefit Payment included in the income of the Corporate Taxpayer or Early Termination Payment hereunder the Corporate Taxpayer’s affiliated or consolidated group transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return Tax Return pursuant to Section 1501 of the CodeCode or any corresponding provisions of state or local Tax law, such entityPerson, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. The transactions described in this Section 7.11(b) shall be taken into account in determining the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income, gain or loss deemed allocated to the Corporate Taxpayer using the Non- Stepped Up Tax Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer, the taxable income of the Corporate Taxpayer shall be determined by treating OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to such Reference Asset (using the Non-Stepped Up Tax Basis), while the Actual Tax Liability of the Corporate Taxpayer would be determined by recovering the actual Tax basis of the Reference Asset that reflects any Basis Adjustments. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Spree Acquisition Corp. 1 LTD), Tax Receivable Agreement (OPAL Fuels Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated affiliated, consolidated, combined or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state state, local or local foreign Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated consolidated, combined or unitary taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that Person the income of which is obligated to make a Tax Benefit Payment included in the income of the Corporate Taxpayer or Early Termination Payment hereunder the Corporate Taxpayer’s affiliated or consolidated group transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return Tax Return pursuant to Section 1501 of the CodeCode or any corresponding provisions of state, local or foreign Tax law, such entityPerson, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. The transactions described in this Section 7.11(b) shall be taken into account in determining the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income, gain or loss deemed allocated to the Corporate Taxpayer using the Non-Stepped Up Tax Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer the taxable income of the Corporate Taxpayer shall be determined by treating OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to such Reference Asset (using the Non-Stepped Up Tax Basis), while the Actual Tax Liability of the Corporate Taxpayer would be determined by recovering the actual Tax basis of the Reference Asset that reflects any Basis Adjustments. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Wm Technology, Inc.), Tax Receivable Agreement (Silver Spike Acquisition Corp.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer or any of its Covered Subsidiaries is or becomes a member of an affiliated affiliated, consolidated, combined or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state state, local or local foreign Tax law, then: (i) the provisions of this TRA Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated consolidated, combined or unitary taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that Person the income of which is obligated to make a Tax Benefit Payment included in the income of the Corporate Taxpayer or Early Termination Payment hereunder its Covered Subsidiaries or the Corporate Taxpayer’s or its Covered Subsidiaries’ affiliated or consolidated group transfers transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return Tax Return pursuant to Section 1501 of the CodeCode or any corresponding provisions of state, local or foreign Tax law, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. The transactions described in this Section 7.11(b) shall be taken into account in determining the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income, gain or loss deemed allocated to the Corporate Taxpayer and its Covered Subsidiaries using the Non-Adjusted Tax Basis of the Referenced Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer or its Covered Subsidiaries the taxable income of the Corporate Taxpayer or its Covered Subsidiaries shall be determined by treating OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to such Reference Asset (using the Non-Adjusted Tax Basis), while the Actual Tax Liability of the Corporate Taxpayer or its Covered Subsidiaries would be determined by recovering the actual Tax basis of the Reference Asset that reflects any Basis Adjustments. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Rush Street Interactive, Inc.), Business Combination Agreement (dMY Technology Group, Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an a combined, consolidated, affiliated or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the relevant group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated (or combined or unitary, where applicable) taxable income income, gain, loss, deduction and attributes of the relevant group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If the Corporate Taxpayer (or any other entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder hereunder), Ranger LLC or any of Ranger LLC’s direct or indirect Subsidiaries that is treated as a partnership or disregarded entity for U.S. federal income tax purposes (but only to the extent such Subsidiaries are not held through any entity treated as a corporation for U.S. federal income tax purposes) (a “Transferor”) transfers one or more assets Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity the Transferor does not file a consolidated tax return Tax Return pursuant to Section 1501 of the Code, such entitythe Transferor, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset Reference Assets in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity the Transferor shall be equal to the fair market value of the contributed assettransferred Reference Assets, plus, without duplication, (i) the amount of debt to which any such Reference Asset is subject, in the case of a transfer of an encumbered Reference Asset or (ii) the amount of debt allocated to any such Reference Asset, in the case of a contribution of a partnership interest. For purposes of this Section 7.117.12(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partnerTransferor’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Ranger Energy Services, Inc.), Tax Receivable Agreement (Ranger Energy Services, Inc.)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity shall be equal to the gross fair market value of the contributed transferred asset. For purposes of this Section 7.117.11(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
partnership allocated to such partner. Notwithstanding the foregoing, after the occurrence of any such transfer as described in the first sentence of this Section 7.11(b), if the Corporate Taxpayer takes actions to ensure that the amount to be received by the TRA Parties hereunder and the timing thereof, taking into account such actions (c) Until twelve months following which actions may, at the consummation election of the Medifax RestructuringCorporate Taxpayer, Parent shall include the payment of an additional amount to a TRA Party), would be the same amount and timing as if such transfer described in the first sentence Section 7.11(b) did not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that occur then this Section 7.11(c7.11(b) shall not apply if the Corporate Taxpayer is unable with respect to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Datesuch transfer.
Appears in 2 contracts
Samples: Tax Receivable Agreement (Bakkt Holdings, Inc.), Merger Agreement (VPC Impact Acquisition Holdings)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated affiliated, consolidated, combined or consolidated unitary group of corporations that files a consolidated consolidated, combined or unitary income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local Tax law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated consolidated, combined or unitary taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that Person the income of which is obligated to make a Tax Benefit Payment included in the income of the Corporate Taxpayer or Early Termination Payment hereunder the Corporate Taxpayer’s affiliated or consolidated group transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return Tax Return pursuant to Section 1501 of the CodeCode or any corresponding provisions of state or local Tax law, such entityPerson, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contributiontransfer. The consideration deemed to be received by such entity in a transaction contemplated in the prior sentence shall be equal to the fair market value of the contributed deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest. The transactions described in this Section 7.11(b) shall be taken into account in determining the Realized Tax Benefit or Realized Tax Detriment, as applicable, for such Taxable Year based on the income, gain or loss deemed allocated to the Corporate Taxpayer using the Non-Stepped Up Tax Basis of the Reference Assets in calculating its Hypothetical Tax Liability for such Taxable Year and using the actual Tax basis of the Reference Assets in calculating its Actual Tax Liability, determined using the “with and without” methodology. Thus, for example, in determining the Hypothetical Tax Liability of the Corporate Taxpayer, the taxable income of the Corporate Taxpayer shall be determined by treating OpCo as having sold the applicable Reference Asset for its fair market value, recovering any basis applicable to such Reference Asset (using the Non-Stepped Up Tax Basis), while the Actual Tax Liability of the Corporate Taxpayer would be determined by recovering the actual Tax basis of the Reference Asset that reflects any Basis Adjustments. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 1 contract
Samples: Business Combination Agreement (ArcLight Clean Transition Corp. II)
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If (x) any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the CodeCode and (y) such transfer was made with a principal purpose of decreasing or delaying any Tax Benefit Payments hereunder, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause If (ix) Holdco I OpCo transfers (or Holdco II is deemed to merge, liquidate or change its current election transfer for United States federal income Tax purposes) any Reference Asset to be a transferee that is treated as a corporation for United States federal income tax Tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property and (y) such transfer was made with a principal purpose of decreasing or delaying any Tax Benefit Payments hereunder, OpCo shall be treated as having disposed of the Reference Asset in a wholly taxable transaction. The consideration deemed to be received by OpCo in a transaction contemplated in the prior sentence shall be equal to the fair market value of the deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) either the amount of Holdco I debt allocated to such asset, in the case of a transfer of a partnership interest.
(d) If any member of a group described in Section 7.11(a) that owns any Common Unit deconsolidates from the group (or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable deconsolidates from the group), then the Corporate Taxpayer shall cause such member (or the parent of the consolidated group in a case where the Corporate Taxpayer deconsolidates from the group) to obtain assume the legal opinion referred obligation to make payments hereunder with respect to the Basis Adjustments, Section 704(c) Benefits and Imputed Interest associated with any Reference Asset it owns (directly or indirectly) in a manner consistent with the terms of this Agreement as the member (or one of its Affiliates) actually realizes Tax benefits. If a transferee or a member of a group described in Section 6.4(a7.11(a) within a reasonable period assumes an obligation to make payments hereunder pursuant to either of time not to be less than nine months from the Closing Dateforegoing sentences, then the initial obligor is relieved of the obligation assumed.
Appears in 1 contract
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a consolidated income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiaries.
(b) If any entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. income tax purposes) with which such entity does not file a consolidated tax return pursuant to Section 1501 of the Code, such entity, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity shall be equal to the fair market value of the contributed asset. For purposes of this Section 7.11, a transfer of a partnership interest shall be treated as a transfer of the transferring partner’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) EBS Holdco I I, LLC, (“Holdco I”) or EBS Holdco II II, LLC (“Holdco II”) to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.. Table of Contents
Appears in 1 contract
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, then, subject to the application of the Valuation Assumptions upon a Change of Control: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a whole to the extent that any applicable Basis Adjustments can be used against such consolidated taxable income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiariesas a whole.
(b) If the Corporate Taxpayer (or any other entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder hereunder), Cactus LLC or any of Cactus LLC’s direct or indirect Subsidiaries that is treated as a partnership or disregarded entity for U.S. federal income tax purposes (but only to the extent such Subsidiaries are not held through any entity treated as a corporation for U.S. federal income tax purposes) (a “Transferor”) transfers one or more assets Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity the Transferor does not file a consolidated tax return Tax Return pursuant to Section 1501 of the Code, such entitythe Transferor, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset Reference Assets in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity the Transferor shall be equal to the fair market value of the contributed assettransferred Reference Assets, plus, without duplication, (i) the amount of debt to which any such Reference Asset is subject, in the case of a transfer of an encumbered Reference Asset or (ii) the amount of debt allocated to any such Reference Asset, in the case of a contribution of a partnership interest. For purposes of this Section 7.117.12(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partnerTransferor’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following the consummation of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be treated as a corporation for federal income tax purposes or (ii) either of Holdco I or Holdco II to distribute their respective interests in EBS, provided, that this Section 7.11(c) shall not apply if the Corporate Taxpayer is unable to obtain the legal opinion referred to in Section 6.4(a) within a reasonable period of time not to be less than nine months from the Closing Date.
Appears in 1 contract
Admission of the Corporate Taxpayer into a Consolidated Group; Transfers of Corporate Assets. (a) If the Corporate Taxpayer is or becomes a member of an affiliated or consolidated group of corporations that files a consolidated income tax return Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of U.S. state or local Tax law, then, subject to the application of the Valuation Assumptions upon a Change of Control: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole. Parent shall file a whole to the extent that any applicable Basis Adjustments can be used against such consolidated taxable income tax return that includes the Corporate Taxpayer and each other member of the federal consolidated income group of which the Corporate Taxpayer was the common parent prior to Parent’s acquisition of the Corporate Taxpayer, and, after the Medifax Restructuring, Parent’s federal consolidated income group is intended to include Medifax-EDI Holding Company and its subsidiariesas a whole.
(b) If the Corporate Taxpayer (or any other entity that is obligated to make a Tax Benefit Payment or Early Termination Payment hereunder hereunder), Rosehill LLC or any of Rosehill LLC’s direct or indirect Subsidiaries that is treated as a partnership or disregarded entity for U.S. federal income tax purposes (but only to the extent such Subsidiaries are not held through any entity treated as a corporation for U.S. federal income tax purposes) (a “Transferor”) transfers one or more assets Reference Assets to a corporation (or a Person classified as a corporation for U.S. federal income tax purposes) with which such entity the Transferor does not file a consolidated tax return Tax Return pursuant to Section 1501 of the Code, such entitythe Transferor, for purposes of calculating the amount of any Tax Benefit Payment or Early Termination Payment (e.g., calculating the gross income of the entity and determining the Realized Tax Benefit of such entity) due hereunder, shall be treated as having disposed of such asset Reference Assets in a fully taxable transaction on the date of such contribution. The consideration deemed to be received by such entity the Transferor shall be equal to the fair market value of the contributed assettransferred Reference Assets, plus, without duplication, (i) the amount of debt to which any such Reference Asset is subject, in the case of a transfer of an encumbered Reference Asset or (ii) the amount of debt allocated to any such Reference Asset, in the case of a contribution of a partnership interest. For purposes of this Section 7.117.12(b), a transfer of a partnership interest shall be treated as a transfer of the transferring partnerTransferor’s share of each of the assets and liabilities of that partnership.
(c) Until twelve months following Notwithstanding anything to the consummation contrary, before causing Rosehill LLC or any of the Medifax Restructuring, Parent shall not cause (i) Holdco I or Holdco II to merge, liquidate or change its current election to be Subsidiaries that are treated as a corporation partnership or disregarded entity for U.S. federal income tax purposes to dispose of twenty-five percent (25%) or more of the Reference Assets in a single transaction, the Corporate Taxpayer shall provide written notice of the proposed disposition to the Agent, and each TRA Holder may, within ten (ii10) either calendar days after the receipt of Holdco I or Holdco II such notice by the Agent, exercise its Exchange Right with respect to distribute their respective interests in EBS, all of its remaining Units; provided, that this Section 7.11(c) the period of time that each TRA Holder has to exercise its Exchange Right pursuant to the foregoing clause shall not apply if be extended to the extent the Corporate Taxpayer reasonably determines is unable necessary for, and the Corporate Taxpayer and such TRA Holder shall take any action reasonably necessary to obtain cause, such exercise of such TRA Holder’s Exchange Right and any subsequent sale of the legal opinion referred to in Section 6.4(a) within a reasonable period of time not Corporate Taxpayer’s common stock resulting therefrom to be less than nine months from in compliance with applicable securities law. If any TRA Holder exercises its Exchange Right during such period, the Closing DateCorporate Taxpayer shall not cause Rosehill LLC or any such Subsidiary to dispose of the Reference Assets before the Exchange is consummated pursuant to the Rosehill LLC Agreement and the foregoing sentence. For the avoidance of uncertainty, the rights set forth in this Section 7.12(c) shall cease to be available to any TRA Holder that no longer holds any Units.
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