Common use of Partnership Representative Clause in Contracts

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 14 contracts

Samples: Operating Agreement (Cardone Equity Fund IX, LLC), Operating Agreement (HIS Capital Fund III, LLC), Operating Agreement (Own Our Own Fund I, LLC)

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Partnership Representative. The Members shall take (a) For purposes of this Section 12.3, unless otherwise specified, all reasonable actions references to avoid the application to the Company provisions of the centralized partnership audit Code shall be to such provisions of sections 6221 through 6241 of the Code, as amended enacted by the Bipartisan Budget Act of 2015. If, however, 2015 as such provisions are found may be modified from time to time (the “BBA”). (b) The Board shall identify a Person to act as the Company’s designated “partnership representative” within the meaning of Code Section 6223 (the “Partnership Representative”). The Partnership Representative and any “designated individual” within the meaning of Treasury Regulations Section 301.6223-1(b)(3)(ii) shall have sole authority to act on behalf of the Company for purposes of Subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws (the “Partnership Audit Rules”), subject to advice by the Company’s tax advisors and approval by the Board of any material elections or decisions. (c) If the Company qualifies to elect pursuant to Code Section 6221(b) (or successor provision) to have Subchapter C of Chapter 63 of the Code not apply to any federal income tax audits and other proceedings, the Partnership Representative shall, upon the instructions of the Board, cause the Company to make such election. (d) If any “partnership adjustment” (as defined in Code Section 6241(2)) is determined with respect to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall promptly notify the Board upon the receipt of a notice of final partnership adjustment, and shall take such actions as directed by the Board, including whether to file a petition in tax court, cause the Company to pay the amount of any such adjustment under Code Section 6225, or make the election under Code Section 6226 or take any other action authorized by the Partnership Audit Rules. The Partnership Representative shall promptly notify each Member of any audit or contest relating to a tax return (or other tax matter) of the Company or any of its Subsidiaries and shall use commercially reasonable efforts to keep each Member reasonably informed with respect to such audit or contest. (e) If any “partnership adjustment” (as defined in Code Section 6241(2)) is finally determined with respect to the Company and the Partnership Representative has not caused the Company to make the election under Code Section 6226, then (i) the Members shall take such actions requested by the Partnership Representative; (ii) the Partnership Representative shall use commercially reasonable efforts to make any modifications available under Code Section 6225(c)(3), (4) and (5); and (iii) any “imputed underpayment” (as determined in accordance with Code Section 6225) or partnership adjustment that does not give rise to an imputed underpayment, shall be apportioned among the Majority Interest owner from amongst Members of the MembersCompany for the taxable year in which the adjustment is finalized in such manner as may be necessary (as determined by the Partnership Representative in good faith based on the advice of legal or tax counsel to the Company and subject to approval of the Board) so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment and any associated interest and penalties are borne by the Members based upon their interests in the Company for the reviewed year. Notwithstanding the foregoing, the Partnership Representative and the Company shall not (1) take any action that would cause a Member to be required to file amended tax returns in accordance with Code Section 6225(c)(2)(A) (or any similar provisions under state or local law), without the advance written consent of each such Member or (2) elect the alternative “pull-in” procedure in accordance with Section 6225(c)(2)(B) of the Code (or any similar provisions under state or local law) in accordance with Code Section 6225(c)(2)(B), without the advance written consent of the Members holding at least a majority of the outstanding Units. (f) If any Company Subsidiary (i) pays any partnership adjustment under Code Section 6225, (ii) requires the Majority Member is unable Company to file an amended tax return and pay associated taxes to reduce the amount of a partnership adjustment imposed on such Company Subsidiary, or unwilling to serve(iii) makes an election under Code Section 6226, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent cause the Company to make the administrative adjustment request provided for in Code Section 6227 consistent with all examinations the principles and limitations set forth in Sections 12.13(d)-(e) above for partnership adjustments of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from the Members shall take such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things actions reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred requested by the Partnership Representative in carrying out furtherance of such administrative adjustment request. (g) The obligations of each Member or former Member under this Section 12.3 shall survive the transfer or redemption by such Member of its obligations hereunder shall be allocated Units and the termination of this Agreement or the dissolution of the Company. (h) For the avoidance of any doubt, in the event of a tax audit of a Member relating to and charged to income or credits derived from the Company, the Company as an shall use commercially reasonable efforts to cooperate with such Member in good faith (at the cost and expense of the Company for which the Partnership Representative shall be reimbursedMember).

Appears in 6 contracts

Samples: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement

Partnership Representative. 5.1 The Members Partnership Representative shall take all reasonable actions to avoid serve as the application to the Company “partnership representative” for purposes of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. IfCode Section 6223; provided, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as that the Partnership Representative shall always be supervised by, and act under the direction of, General Partner and General Partner shall have the authority, in its sole discretion, to cause the Fund to designate a new Partnership Representative at any time and for any reason. The Fund shall notify the purposes IRS of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member any change in Partnership Representative in the Companymanner and at the time that the IRS requires; the former Partnership Representative shall cooperate with General Partner in making any necessary filings with the IRS regarding such change. 5.2 In all situations, and no other individual has been appointed as without regard to the specific elections made, each Partner agrees to reasonably cooperate with the Partnership Representative, the Fund, and other Partners by providing such information and taking such actions as may be reasonably necessary to mitigate, to the fullest extent possible, the potential tax exposure of the Fund as well as the potential tax exposure of the other Partners relating to the Fund. 5.3 Any taxes, penalties, and interest payable by the Fund or any entity disregarded for United States income tax purposes in which the Fund owns an interest under Subchapter C of Chapter 63 of Subtitle F of the Code and the Regulations (“Partnership Representative Audit Procedures”) shall be treated as specifically attributable to the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to servePartners, and the Partnership Representative (in consultation with General Partner) shall be appointed from amongst use reasonable best efforts to allocate the remaining Members burden of (or any diminution in distributable proceeds resulting from) any such taxes, penalties or interest to those Partners to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise), as determined by the Partnership Representative (in consultation with General Partner). Notwithstanding the foregoing, such apportionment of liability shall also take into account the extent to which the Fund’s imputed underpayment was modified by adjustments under Code Section 6225(c) (to the extent approved by the IRS) and attributable to (x) a Majority particular Partner’s tax classification, tax rates, tax attributes, the character of Interests tax items to which the adjustment relates, and similar factors, or (y) the Partner’s filing of an amended return or complying with the “alternative procedure” to filing an amended tax return for the Partner’s taxable year that includes the end of the MembersFund’s reviewed year and payment of required tax liability in a manner that complies with Code Section 6225(c)(2). In connection with the foregoing, to the extent that the Fund is assessed amounts under the Partnership Audit Procedures, each current or former Partner to which the assessment relates shall remit to the Fund, within 30 days’ written notice by the Partnership Representative, an amount equal to such Partner’s allocable share of the assessment, including such Partner’s allocable share of any interest imposed on the Fund.These procedures shall also apply to any state, local or foreign tax audit regime that centralizes the conduct of a tax audit of the Fund. The Partnership Representative shall be authorized and required to represent serve in a similar capacity for any such audit. 5.4 The provisions of this section shall survive the Company with all examinations dissolution of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of taxFund, the withdrawal of any Partner from the Fund and the transfer of any Partner’s Partnership Representative shall duly and timely elect under section 6226 of Interest in the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedFund.

Appears in 5 contracts

Samples: Cornerstone Agreement, Cornerstone Agreement, Cornerstone Agreement

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. Cardone Equity Fund V, LLC C-7 Operating Agreement The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 5 contracts

Samples: Operating Agreement, Operating Agreement (Cardone Equity Fund V, LLC), Operating Agreement (Cardone Equity Fund V, LLC)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Managing Member with the initial Partnership Representative being Clear Secure. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Managing Member and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests in the Company for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 6.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 6.01(c) shall be allocated implemented through adjustments to and charged distributions otherwise payable to such Member as determined in accordance with Section 5.03; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to distribution or required capital contribution of such Member or former Member. Any amount withheld from distributions pursuant to this Section 6.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 6.01(c) shall survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s interest.

Appears in 3 contracts

Samples: Operating Agreement (Clear Secure, Inc.), Operating Agreement (Clear Secure, Inc.), Operating Agreement (Clear Secure, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Managing Member with the initial Partnership Representative being RocketCo. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Managing Member and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests in the Company for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 6.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 6.01(c) shall be allocated implemented through adjustments to and charged distributions otherwise payable to such Member as determined in accordance with Section 5.03; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to distribution or required capital contribution of such Member or former Member. Any amount withheld from distributions pursuant to this Section 6.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 6.01(c) shall survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s interest.

Appears in 3 contracts

Samples: Operating Agreement (Rocket Companies, Inc.), Operating Agreement (Rocket Companies, Inc.), Limited Liability Company Agreement (Rocket Companies, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Manager with the initial Partnership Representative being the Corporation. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Manager and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members in the same proportion that such omitted taxable income or overreported loss giving rise to the Imputed Underpayment Amount would have been allocated pursuant to this Agreement. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 9.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, be allocated implemented through adjustments to and charged Distributions otherwise payable to such Member as determined in accordance with Section 4.01; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to Distribution or required capital contribution of such Member or former Member. Any amount withheld from Distributions pursuant to this Section 9.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s Company Interest.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (Alvarium Tiedemann Holdings, Inc.), Limited Liability Company Agreement (Tiedemann Michael), Business Combination Agreement (Cartesian Growth Corp)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (Mission First Capital LLC), Limited Liability Company Agreement (Mission First Capital LLC), Limited Liability Company Agreement (Mission First Capital LLC)

Partnership Representative. (a) The Members Chief Executive Officer shall take all reasonable actions to avoid be the application to Company’s “partnership representative” within the Company meaning of the centralized partnership audit provisions of sections 6221 through 6241 Section 6223 of the Code. The partnership representative shall have sole authority to act on behalf of the Company for purposes of subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws and shall serve as the Company’s partnership representative until his, as amended by her or its resignation or until the Bipartisan Budget Act designation of 2015. Ifhis, her or its successor, whichever occurs sooner; provided, however, that the partnership representative shall take any action, and refrain from taking any action, as directed by the Board of Directors. (b) To the extent that, as a result of a determination by a taxing authority or adjudicative body, there is any adjustment for the purposes of any tax law to any items of income gain, loss, deduction or credit of the Company for any taxable period, the Company will use commercially reasonable efforts to cause the financial burden of any “imputed underpayment” (as determined under Section 6225 of the Code) and associated interest, adjustments to tax and penalties (an “Imputed Underpayment”) arising from a partnership-level adjustment that are imposed on the Company to be borne by the Members and former Members to whom such provisions are found Imputed Underpayment relates as determined by the partnership representative after consulting with the Company’s accountants or other advisers, taking into account any differences in the amount of taxes attributable to apply each Member because of such Member’s status, nationality or other characteristics. The portion of any Imputed Underpayment attributed to a former Member shall be treated as a Withholding Payment pursuant to Section 4.03 with respect to such former Member. Each Member agrees to indemnify and hold harmless the Company and the partnership representative from and against any and all liability with respect to any Imputed Underpayment required on behalf of, or with respect to, such Member. (c) The Members agree that, upon the partnership representative’s request, they shall use commercially reasonable efforts to provide it with available information in the Member’s possession regarding their individual tax returns and liabilities that may be necessary under Section 6225(c) of the Code or other state or local rule. Notwithstanding anything else in this Agreement, in no event shall any Member be required to file amended tax returns with respect to any “reviewed year” (within the meaning of Section 6225(d)(1) of the Code) or to cooperate with the alternative procedure to filing amended returns pursuant to Section 6225(c)(2)(B) of the Code or any applicable similar state or local laws. (d) The obligations of this Section 8.03, including a Member’s indemnification obligations under Section 8.03(b), shall survive the liquidation and dissolution of the Company and the transfer, assignment or liquidation of a Member’s interest in the Company. If any Member ceases to be a Member, such Member shall keep the Company advised of its contact information until released in writing by the Company from such obligation. (e) Notwithstanding anything to the contrary in this Section 8.03, the partnership representative shall not settle any audit, claim or litigation with respect to taxes of or attributable to the operations of the Company to the extent such settlement would result in a disproportionately material adverse impact to any Member without receiving the prior written consent of such Member, which consent shall not be unreasonably withheld, conditioned or delayed; provided that if such settlement has a disproportionately material adverse on a group of Members that hold the same class or series of equity or shares in the Company, a member consent of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result holders of such an audit, each Person who was class or series holding a member during the taxable year that was audited majority of such class or series shall pay to the Company an amount equal consent to such Person’s proportionate share of such liabilitysettlement, as determined by the Managerwhich consent shall not be unreasonable withheld, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, conditioned or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimburseddelayed.

Appears in 3 contracts

Samples: Operating Agreement (Pandion Therapeutics Holdco LLC), Operating Agreement (Pandion Therapeutics Holdco LLC), Operating Agreement (Pandion Therapeutics Holdco LLC)

Partnership Representative. The Members Limited Partners shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager General Partner or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager General Partner is no longer a Member partner in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the MembersLimited Partners. If the Majority Member Limited Partner is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members Limited Partners by a Majority of Interests of the MembersLimited Partners. Keystone Investors - Urban Node Fund II, LP Limited Partnership Agreement The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member Limited Partner during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the ManagerGeneral Partner, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members Limited Partners agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 3 contracts

Samples: Limited Partnership Agreement (Keystone Investors-Urban Node Fund II, LP), Limited Partnership Agreement (Keystone Investors-Urban Node Fund II, LP), Limited Partnership Agreement (Keystone Investors-Urban Node Fund II, LP)

Partnership Representative. The Members Manager shall take all reasonable actions to avoid the application to designate a partnership representative of the Company (the “Partnership Representative”), within the meaning of the centralized partnership audit provisions of sections 6221 through 6241 Section 6223(a) of the Code, as amended by the Bipartisan Budget Act of 2015. IfRevised Partnership Audit Procedures, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative well as for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Companyany state, and no other individual has been appointed as the Partnership Representativelocal, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. non-U.S. tax law. (i) The Partnership Representative shall be authorized notify the Members upon the receipt of a notice of final partnership adjustment, and required to represent shall make any relevant elections taking into account the Company with all examinations best interests of the Company’s affairs by tax authorities, including resulting administrative current Members and judicial proceedingsformer Members to comply with the Revised Partnership Audit Procedures. The Partnership Representative shall have all of the sole authority to (1) sign consents, enter into settlement rights and other agreements with such authorities with respect to any such examinations or proceedings and powers of a partnership representative as set forth in the Revised Partnership Audit Procedures. (ii) If the Company pays any imputed adjustment amount under Code Section 6225, as amended by the Revised Partnership Audit Procedures, the Manager shall allocate the amount of the payment among the Members (including any former Members) for the “reviewed year” to expend which such liability relates in a manner that reflects the current or former Members’ respective interests in the Company for that reviewed year. Such apportionment of liability shall also take into account the extent to which the Company’s funds for professional services incurred in connection therewith. In imputed underpayment was modified by adjustments under Section 6225(c) of the event Code (to the extent approved by the IRS) and attributable to (x) a particular Member’s tax classification, tax rates, tax attributes, the character of tax items to which the adjustment relates, and similar factors, or (y) the Member’s filing of an adjustment resulting in an underpayment of tax, amended return for the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the Member’s taxable year that was audited personally bear any tax, interest, addition includes the end of the Company’s reviewed year and payment of required tax liability in a manner that complies with Section 6225(c)(2) of the Code. Each Member (or former Member) for the reviewed year hereby agrees to taxpay such amount to the Company, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay amount so contributed to the Company an shall not be treated as a Capital Contribution. Any amount not paid under the preceding sentence by a Member (or former Member) at the time requested by the Manager shall accrue interest at a rate equal to the lower of the fifteen percent (15%) per annum, compounded monthly, or the maximum rate of interest permitted by applicable law until paid, and such Person’s proportionate share of Member (or former Member) shall also be liable to the Company for any damages resulting from a delay in making such liability, as determined payment beyond the date such payment is requested by the Manager. To the extent that any Member fails to make any contribution required pursuant to this paragraph, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty amounts shall be specially allocated applied to and reduce the next distributions or any other monetary payments otherwise payable to the Member under this Agreement. (iii) The Members agree to cooperate in good faith, including by timely providing information, making elections and filing amended returns and paying any tax due with such Persons in such proportions. The amended returns, each as reasonably requested by the Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the CompanyRepresentative. The Members agree to cooperate file all U.S. federal, state, and local tax returns on a basis consistent with the Partnership Representative and to do or refrain from doing any or all things reasonably required returns filed by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by Company and the Partnership Representative terms of this Agreement. (iv) The provisions contained in carrying out its obligations hereunder this Section 12.4(a) shall be allocated to and charged to survive the Company as an expense dissolution of the Company for which Company, the Partnership Representative shall be reimbursedwithdrawal of any Member or the transfer of any Member’s interest in the Company.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Trinity Place Holdings Inc.), Stock Purchase Agreement (Trinity Place Holdings Inc.)

Partnership Representative. The Members Manager shall take all reasonable actions to avoid the application to designate each year a “partnership representative” of the Company for purposes of Section 6223 of the centralized partnership audit provisions Code and the Treasury Regulations promulgated thereunder (the “Partnership Representative”), which may be the Manager and shall be the Manager if no other person is designated. The Partnership Representative shall have all of sections 6221 the powers and responsibilities of such position as provided in the Code and any Treasury Regulations thereunder and may take any action contemplated by Sections 6222 through 6241 of the Code, as amended by any Treasury Regulations or other guidance thereunder and any comparable state or local law (the Bipartisan Budget Act of 2015“Partnership Tax Audit Rules”). If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The All expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder connection with the Company shall be allocated to and charged borne by the Company. Any amounts paid by the Partnership Representative on behalf of the Company shall constitute an advance to the Company subject to reimbursement and not a contribution to its capital. The Partnership Representative is authorized to employ such accountants, attorneys and agents as an expense it determines are necessary to or useful in the performance of its duties. Any person who serves as Partnership Representative shall not be liable to the Company or any Member for any action it takes or fails to take in such capacity, unless such action or failure to act constitutes bad faith, willful misconduct, gross negligence, fraud or a material breach of this Agreement. Upon the Company’s request, each Member shall provide to the Company within the required time frame any information that the Partnership Representative believes may be necessary or appropriate to resolve any tax issue relating to the Company or comply with or be eligible to invoke any aspect of the Partnership Tax Audit Rules. Notwithstanding any provision of this Agreement to the contrary, any taxes, penalties, and interest payable by the Company for which under the Partnership Tax Audit Rules shall be treated as attributable to the Members, and, to the extent possible, the Partnership Representative shall allocate the burden of any such amounts to those Members to whom such amounts are reasonably attributable. To the extent that any such amount is payable by the Company, at the option of the Partnership Representative, the Members to whom such amounts are reasonably attributable, including persons that were Members in the year that is the subject of such audit, shall (a) be reimbursedpromptly paid to the Company by such Member or (b) be paid by reducing the amount of the current or next succeeding distribution or distributions which would otherwise have been made to such Member. The Company shall indemnify the Partnership Representative as provided in Section 7.4. In the event of a Transfer of a Member’s Membership Interest, the transferor Member’s obligations under this Section 9.3 shall survive such transfer and such transferor Member shall continue to be liable for any taxes, penalties, and interest payable by the Company under the Partnership Audit Rules that are reasonably attributable to such transferor Member.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (VictoryBase Corp), Limited Liability Company Agreement (VictoryBase Corp)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Manager with the initial Partnership Representative being the Corporation. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Manager and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 9.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, be allocated implemented through adjustments to and charged Distributions otherwise payable to such Member as determined in accordance with Section 4.01; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to Distribution or required capital contribution of such Member or former Member. Any amount withheld from Distributions pursuant to this Section 9.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s Company Interest.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (UWM Holdings Corp), Limited Liability Company Agreement (UWM Holdings Corp)

Partnership Representative. The Members shall take all reasonable actions Managing Member is hereby designated as the “partnership representative” within the meaning of Section 6223 of the Code (and, as applicable, in any similar capacity under state or local tax law) (the “Partnership Representative”) and to avoid represent the application Company in any tax audit, examination or investigation of the Company by any taxing authority or any other tax-related administrative or judicial proceeding with respect to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, (any such provisions are found to apply to the Companyproceeding, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members“Tax Proceeding”). The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities take any actions necessary with respect to any such examinations or proceedings Tax Proceeding and to make any decisions and elections relating thereto in its sole discretion; provided, that (i) BW shall be entitled to fully participate in any Tax Proceeding reasonably expected to materially disproportionately affect BW and (ii) the Company shall not settle or otherwise resolve any such Tax Proceeding that materially disproportionately affects BW without BW’s consent (not to expend the Company’s funds for professional services incurred in connection therewithbe unreasonably withheld, conditioned or delayed). In the event of an adjustment resulting in an underpayment of tax, Each Member shall reasonably cooperate with the Partnership Representative shall duly to give effect to the requirements of and timely elect under section 6226 elections made by the Partnership Representative and provide such information as the Partnership Representative may reasonably request, including any information necessary to reduce the amount of any resulting tax imposed on the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any taxCompany. If, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, tax or penalty as a result of such an auditpenalty, each Person person who was a member Member during the taxable year of the Company that was audited shall pay to the Company an amount equal to such Person’s proportionate be responsible for its share of such liability, as determined by the Manager, liability based on the amount each such Person Member should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses , and the expense for the Company’s payment of such tax, interest, addition to tax, or tax and penalty shall be specially allocated to such Persons Member(s) in such proportions. The Partnership Representative provisions of this Section 5.4 and the obligations of each Member thereunder shall have the final decision-making authority with respect survive a Member’s ceasing to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense a Member of the Company and will remain binding for which the period of time necessary to resolve any Tax Proceedings. The Partnership Representative shall be reimbursedauthorized to appoint a designated individual who shall have the same rights, obligations, and limitations of the Partnership Representative.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Colony Capital, Inc.), Limited Liability Company Agreement (Colony Capital, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company (a) As of the centralized Effective Date, the PBF Member shall be the “partnership audit provisions representative” within the meaning of sections 6221 through 6241 Section 6223 of the Code, as amended by Code (the Bipartisan Budget Act “Partnership Representative”). (b) Subject always to its obligation to act in the best interest of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for shall have the purposes of IRS Code section 6221 through 6241. In the event the member exclusive right and sole authority to act on behalf of the Manager is no longer a Member Company under Subchapter C of Section 63 of the Code (relating to partnership audit proceedings) and in any tax proceedings brought by taxing authorities. Subject to the Company, and no other individual has been appointed as the Partnership Representativeterms of this Section 9.4, the Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any such tax proceedings or otherwise related to its role as “partnership representative.” The Partnership Representative will give notice to the Majority Interest owner from amongst other Members of any audit, administrative or judicial proceeding relating to taxes of the Company as soon as reasonably practicable, but no later than thirty (30) days, after becoming aware of such proceeding. The Partnership Representative shall forward to each other Member copies of all significant written communications it may receive in that capacity and will keep the other Members reasonably informed concerning the progress and status of any such audit or proceeding. The Partnership Representative shall provide written notice to the other Members concerning its intent to make any election or decision, or take any other action, with respect to Sections 6221 through 6234 of the Code, and shall permit such other Member to review and provide comments with respect to such election, decision or action. (c) In the case of any Imputed Underpayment, except as agreed to by the Initial Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by make a Majority of Interests timely election under Section 6226 of the Code to “push out” such Imputed Underpayment to the current and former Members, as applicable, and furnish to such Members and the IRS a statement of such respective Member’s share, with the shares calculated in a manner that takes into account how the items of income, gain, loss, deduction or credit that gave rise to such Imputed Underpayment would have been allocated to each Member under this Agreement for the applicable taxable year, as required by Section 6226(a)(2) of the Code. Upon an Initial Member’s request, with respect to any Imputed Underpayment, the Partnership Representative shall apply the “pull-in” method described in Section 6225(c)(2)(B) of the Code and the Treasury Regulations thereunder with respect to such Initial Member. The Partnership Representative shall be authorized cooperate with any Initial Member concerning an Imputed Underpayment and required provide any information reasonably requested to represent permit such Initial Member to prepare any amended return, participate in the Company with all examinations “pull-in” method described in Section 6225(c)(2)(B) of the Company’s affairs by Code and the Treasury Regulations thereunder, or compute any tax authoritiesliability, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consentsin each case, enter into settlement and other agreements with such authorities with respect to such Imputed Underpayment. (d) Each current and former Member’s allocable portion of any Imputed Underpayment shall be subject to the review and comment of each such examinations Member and shall take into account the extent to which such Imputed Underpayment was modified by any applicable and permitted adjustments, including such adjustments attributable to a current or proceedings and former Member’s (or such Member’s direct or indirect owner’s) (i) tax classification, tax rates, tax attributes, the character of tax items to which the adjustment relates or similar factors or (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event filing of an adjustment resulting amended tax return and payment of taxes that complies with Section 6225(c)(2)(A) of the Code and the Treasury Regulations thereunder, or participation in an underpayment the “pull-in” method in a manner that complies with Section 6225(c)(2)(B) of taxthe Code and the Treasury Regulations thereunder. (e) Except as described in Section 9.4(c), the Partnership Representative shall duly and timely elect under section 6226 not take any of the IRS Code following actions without the prior written consent of any Initial Member whose rights or obligations would be adversely affected by such actions: (i) file any suit or petition in the U.S. Tax Court or any other venue concerning any tax refund or deficiency relating to any Company administrative adjustment; provided that each Person who was a Member during no such consent shall be required if the estimated amount in controversy is not greater than $500,000, or (ii) enter into any settlement agreement or other compromise relating to any material Company item of income, gain, loss, deduction or credit for any taxable year that was audited personally bear of the Company. (f) Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any taxpayment for taxes, interest, addition to taxtax or penalty with respect to a Member’s share of any Covered Audit Adjustment as determined in the reasonable good faith discretion of the Partnership Representative, which shall be consistent with the allocations set forth under Section 4.2(i). To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4(f) shall survive the dissolution, liquidation, termination and penalty resulting from such adjustments and, if for any reason, winding-up of the Company is liable for a taxand shall survive, interestas to each Member, addition to tax, such Member’s withdrawal from the Company or penalty termination of the Member’s status as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay Member. The Company may pursue all rights and remedies it may have against any Member (or former Member). Any amounts payable to the Company under this Section 9.4(f) shall be payable by such Member within fifteen (15) Business Days of the Member’s receipt of notice that such payment is due. To the extent, and at the time(s), that a Member makes a payment to the Company under this Section 9.4(f), such payment shall increase such Member’s Capital Account in the good faith discretion of the Partnership Representative, but shall not reduce the amount that such Member is otherwise obligated to contribute to the Company under this Agreement. The Company shall have a right of set-off against distributions to a Member or former Member for amounts to be indemnified pursuant to this Section 9.4(f), and any amount so withheld shall be treated as an amount equal distributed to such Person’s proportionate share Member for purposes of such liabilitySection 4.5(c) and Section 13.3. (g) Any reasonable, as determined documented cost or expense incurred by the ManagerPartnership Representative in connection with the roles and responsibilities described in this Section 9.4, based on including the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return preparation for such taxable year reflected the audit adjustment. The expenses for the Company’s payment or pursuance of such taxadministrative or judicial proceedings, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving paid by the Company. The Members agree to reasonably cooperate with the Partnership Representative Company and to do or refrain from doing any or all things reasonably required by the Partnership Representative as necessary to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by carry out the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense intent of the Company for which the Partnership Representative shall be reimbursedthis Section 9.4.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (PBF Holding Co LLC), Subscription Agreement (PBF Holding Co LLC)

Partnership Representative. (a) The Managing Member shall be the “partnership representative” of the Company under Code Section 6223 for federal income tax purposes (the “Partnership Representative”). The Partnership Representative shall receive no compensation for its services. All third-party costs and expenses incurred by the Partnership Representative in performing its duties as such (including legal and accounting fees and expenses) shall be borne by the Company in addition to any reimbursement pursuant to Section 7.4 hereof. Nothing herein shall be construed to restrict the Company from engaging an accounting firm to assist the Partnership Representative in discharging its duties hereunder The Managing Member shall appoint an individual (the “Designated Individual”) through whom the Partnership Representative will act in accordance with Regulations Section 301.6223-1 and any other applicable IRS guidance. The Designated Individual is authorized to take any action the Partnership Representative is authorized to take under this Agreement. The Members shall take all reasonable actions to avoid promptly provide the application Partnership Representative with such information as is readily available to the Members as may be reasonably requested by the Partnership Representative from time to time in connection with any tax audit or judicial review proceeding. (b) The Partnership Representative is authorized, but not required: (i) to enter into any settlement with the IRS with respect to any administrative or judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes (such administrative proceedings being referred to as a “tax audit” and such judicial proceedings being referred to as “judicial review”), and in the settlement agreement the Partnership Representative may expressly state that such agreement shall bind all Members; (ii) in the event that a notice of a final administrative adjustment at the Company level of any item required to be taken into account by a Member for tax purposes (a “Final Adjustment”) is mailed to the Partnership Representative, to seek judicial review of such Final Adjustment, including the filing of a petition for readjustment with the United States Tax Court or the United States Claims Court, or the filing of a complaint for refund with the District Court of the centralized partnership audit provisions United States for the district in which the Company’s principal place of sections 6221 through 6241 business is located; (iii) to intervene in any action brought by any other Member for judicial review of a Final Adjustment; (iv) to file a request for an administrative adjustment with the IRS at any time and, if any part of such request is not allowed by the IRS, to file an appropriate pleading (petition or complaint) for judicial review with respect to such request; (v) to enter into an agreement with the IRS to extend the period for assessing any tax that is attributable to any item required to be taken into account by a Member for tax purposes, or an item affected by such item; (vi) to make an election under Code Section 6226; and (vii) to take any other action on behalf of the CodeMembers or any of them in connection with any tax audit or judicial review proceeding to the extent permitted by applicable law or regulations. The taking of any action and the incurring of any expense by the Partnership Representative in connection with any such proceeding, except to the extent required by law, is a matter in the sole and absolute discretion of the Partnership Representative and the provisions relating to indemnification of the Managing Member set forth in Section 7.7 hereof shall be fully applicable to the Partnership Representative and the Designated Individual in their capacities as amended by such. (c) For tax years beginning before December 31, 2017, a “Tax Matters Partner,” as such term is defined in Section 6231(a)(7) of the Code (as in effect prior to the enactment of the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to ) and in any similar capacity under the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company, was appointed by the Managing Member. The Tax Matters Partner is the Managing Member. Except as otherwise provided in this Agreement, the Tax Matters Partner shall have all the rights, duties, powers and obligations of a member “tax matters partner” under the Code (as in effect prior to the enactment of the Manager Bipartisan Budget Act of 2015). The Tax Matters Partner shall not take any actions or another appointed individual shall act as make any elections contrary to the Partnership Representative for requirements of this Agreement without the purposes of IRS Code section 6221 through 6241. In the event the member Consent of the Manager is no longer a Managing Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 2 contracts

Samples: Operating Agreement (Lineage, Inc.), Operating Agreement (Lineage, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions Managing Member is hereby designated as the “partnership representative” pursuant to avoid the application to the Company Section 6223(a) of the centralized partnership audit provisions of sections 6221 through 6241 of Code (in such capacity, the Code“Partnership Representative”). In addition, as amended the Managing Member is hereby authorized to designate or remove any other Person selected by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act Managing Member as the Partnership Representative for (with the purposes of IRS Code section 6221 through 6241. In the event the member approval of the Manager is no longer a Original Member in the Company, and no other individual has been appointed as the Partnership Representative, such approval not to be unreasonably withheld, delayed, or conditioned); provided that all actions taken by the Partnership Representative pursuant to this Section 10.3 shall be subject to the Majority Interest owner from amongst overall oversight and authority of the MembersBoard. If the Majority Member is unable or unwilling to serve, For each Fiscal Year in which the Partnership Representative is an entity, the Company shall be appointed from amongst appoint the remaining Members “designated individual” identified by a Majority of Interests of the Members. The Partnership Representative shall be and approved by the Board to act on its behalf in accordance with the applicable Regulations or analogous provisions of state or local Law. Each Member hereby expressly consents to such designations and agrees to take, and that the Managing Member is authorized and required to represent take (or cause the Company with all examinations of to take), such other actions as may be necessary or advisable pursuant to Regulations or other Internal Revenue Service or Treasury guidance or state or local Law to cause such designations or evidence such Member’s consent to such designations. (b) Subject to this Section 10.3, the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to act on behalf of the Company in connection with, make all relevant decisions regarding application of, and to exercise the rights and powers provided for in the BBA Rules, including making any elections under the BBA Rules or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any Action, audit or examination before the IRS or any other tax authority (1) sign consentseach, enter into settlement an “Audit”), and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services and other expenses reasonably incurred in connection therewith. In . (c) Without limiting the event of an adjustment resulting in an underpayment of taxforegoing, the Partnership Representative shall duly and timely elect under section 6226 give prompt written notice to the Original Member Representative of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear commencement of any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, Audit of the Company is liable for or any of its Subsidiaries (a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions“Specified Audit”). The Partnership Representative shall have (i) keep the Original Member Representative reasonably informed of the material developments and status of any such Specified Audit, (ii) permit the Original Member Representative (or its designee) to participate (including using separate counsel), in each case at the Original Members’ sole cost and expense, in any such Specified Audit, and (iii) promptly notify the Original Member Representative of receipt of a notice of a final decision-making authority partnership adjustment (or equivalent under applicable Laws) or a final decision of a court or IRS Appeals panel (or equivalent body under applicable Laws) with respect to all federal income tax matters involving the Companysuch Specified Audit. The Members agree to cooperate Partnership Representative or the Company shall promptly provide the Original Member Representative with copies of all material correspondence between the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company (as an expense of applicable) and any Governmental Entity in connection with such Specified Audit and shall give the Company for which Original Member Representative a reasonable opportunity to review and comment on any material correspondence, submission (including settlement or compromise offers) or filing in connection with any such Specified Audit. Additionally, the Partnership Representative shall not (and the Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or abandon any Specified Audit in a manner that would reasonably be reimbursedexpected to have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members without the Original Member Representative’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). The Partnership Representative shall obtain the prior written consent of the Original Member Representative (which consent shall not be unreasonably withheld, delayed or conditioned) before (i) making an election under Section 6226(a) of the Code (or any analogous provision of state or local Law) (a “Push-Out Election”) or (ii) taking any material action under the BBA Rules that would reasonably be expected to have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members, in the case of clauses (i) and (ii). (d) Notwithstanding anything to the contrary contained in this Agreement, in the event of any conflict between Section 7.1 of the Business Combination Agreement and this Agreement, Section 7.1 of the Business Combination Agreement shall control. The Company, the Partnership Representative, the Managing Member, and the Members hereby acknowledge and agree to the foregoing sentence and expressly agree to be bound by the terms of Section 7.1 of the Business Combination Agreement. (e) This Section 10.3 shall be interpreted to apply to Members and former Members and shall survive the Transfer of a Member’s Company Units and the termination, dissolution, liquidation and winding up of the Company and, for this purpose to the extent not prohibited by applicable Law, the Company shall be treated as continuing in existence.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (OppFi Inc.), Business Combination Agreement (FG New America Acquisition Corp.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for shall be the purposes Managing Member or, if the Managing Member or any of IRS Code section 6221 through 6241. In the event the member of the Manager is its Affiliates no longer a Member owns an interest in the Company, and no other individual has been then such Member as shall be appointed by the Managing Member, as the Partnership Representativedetermined from time to time. If any state or local tax law provides for a tax matters partner, partnership representative or person having similar rights, powers, authority or obligations, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Membersalso serve in such capacity. The Partnership Representative shall designate from time to time a “designated individual” to act on behalf of the Partnership Representative, and such designated individual shall be subject to replacement by the Partnership Representative in accordance with the Code and Treasury Regulations. (b) The Partnership Representative is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services incurred in connection therewith. In The Partnership Representative may employ experienced tax advisors to represent the event Company in connection with any audit or investigation of an adjustment resulting the Company by any tax authority and in an underpayment connection with all subsequent administrative and judicial proceedings arising out of tax, such audit. All expenses reasonably incurred by the Partnership Representative in serving as the Partnership Representative (including but not limited to fees and expenses of counsel and tax advisors) shall duly be a Company expense and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any taxshall be paid or reimbursed, without interest, addition to tax, by the Company. (c) The Partnership Representative shall keep the Members reasonably informed of all administrative and penalty resulting from such adjustments and, if for any reason, judicial proceedings involving the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the any Company an amount equal to such Person’s proportionate share of such liabilityreturn, as determined required by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportionsCode. The Partnership Representative shall have notify the final decision-making authority Members, within thirty (30) days after it receives any notice from the IRS or any state, local or foreign taxing authority, and shall forward to each Member copies of all material written communications it may receive in that capacity, of (a) any administrative or judicial proceedings with respect to all federal income an examination of, or proposed adjustments to, the income, deductions, gains, losses or credits of the Company, (b) any extension of the statute of limitations with respect to any taxable year of the Company, (c) filing of a request for administrative adjustment with respect to the Company, (d) filing of a suit concerning any tax matters involving refunds or deficiency relating to any Company administrative adjustment or (e) entering into any settlement agreement relating to any Company item of income, gain, loss, deduction or credit for any taxable period of the Company. The Members agree Each Member agrees to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to in connection with the conduct of all such proceedings. Any reasonable direct out-of-pocket expense incurred . (d) In the event of an audit of the Company that is subject to the partnership audit procedures enacted under Section 1101 of the Bipartisan Budget Act of 2015 (the “BBA Procedures”), the Partnership Representative, in its sole discretion, shall have the right to make any and all elections and to take any actions that are available to be made or taken by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to or the Company as an expense under the BBA Procedures (including any election under Code Section 6226) that the Partnership Representative believes to be in the best interest of the Company or all of the Members. If the IRS adjusts any items of Company taxable income, gain, loss, deduction or credit for a given year (a “Review Year”), and if the Company is permitted under the applicable provisions of the Code and Treasury Regulations to either pay tax at the Company level or to elect to pass the adjustment through to the Members (a “Pass-Through Election”), the Managing Member shall determine whether to make a Pass-Through Election. In any case where an adjustment of Company taxable income, gain, loss, deduction or credit for a Review Year results in the payment of tax by the Company (because no Pass-Through Election was made or because no Pass-Through Election was available), it is intended that the Members shall bear the economic responsibility for the payment of the tax, penalty and interest paid by the Company in proportion to the manner in which such adjustments made by the IRS would have been allocated to the Members based on their interests in the Company in the Review Year. If a Person who was a Member of the Company in the Review Year has withdrawn from the Company, such former Member shall remain obligated to indemnify the Company and the other Members for such former Member’s proportionate share of the tax, penalties and interest paid by the Company with respect to the Review Year. Each Member hereby agrees to take all other actions as the Partnership Representative may reasonably direct with respect to the Member’s (or, in respect of the Member, the Company’s) tax liabilities, including filing an amended return for any Review Year to account for all adjustments under Section 6225(a) of the Code properly allocable to the Member as provided in and otherwise contemplated by Section 6225(c) of the Code and any Treasury Regulations that may be promulgated thereunder. Notwithstanding anything to the contrary in this Agreement, the Partnership Representative shall not take any action or omit any action that would reasonably be reimbursedexpected to have a disproportionate, material adverse effect on a Member without such other Member’s written consent, which such consent shall not be unreasonably withheld, delayed or conditioned. (e) The provisions of this Section 11.1 shall survive the termination or dissolution of the Company or the termination of any Member’s interest in the Company, any transfer of a Member’s interest in the Company or withdrawal as a Member and shall remain binding on the Member.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Direct Digital Holdings, Inc.), Limited Liability Company Agreement (Direct Digital Holdings, Inc.)

Partnership Representative. For tax returns filed with respect to fiscal years beginning after December 31, 2017, this Section 10.3B shall apply, and references to Code sections in this Section 10.3B refer to the Code sections as in effect after taking into account the amendments provided by the 2015 Budget Act. The Members General Partner shall take all such reasonable actions to avoid as it believes will enhance the avoidance of the application to the Company Partnership of the centralized partnership audit provisions of sections Sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to do apply to the CompanyPartnership, a member of the Manager or another appointed individual General Partner shall also act as the Partnership Representative “partnership representative” for the purposes of IRS Code section said Sections 6221 through 6241. In the event the member 6241 of the Manager is no longer a Member in Code. Each Partner hereby consents to the Company, and no other individual has been appointed General Partner serving as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests partnership representative and agrees upon request of the MembersGeneral Partner to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such further documents as may be necessary or appropriate to evidence such consent. The Partnership Representative shall partnership representative will be authorized and required to represent the Company Partnership (at the Partnership’s expense) in connection with all examinations of the CompanyPartnership’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority , and to (1i) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the CompanyPartnership’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of taxsuch event, the Partnership Representative partnership representative shall duly and timely elect under section Section 6226 of the IRS Code that to require each Person who was a Member Partner during the taxable year of Partnership that was audited to personally bear any tax, interest, addition to tax, interest and penalty resulting from adjustments based on such audit and shall notify each such Person (and the Internal Revenue Service) of their share of such audit adjustments and, if for any reason, the Company Partnership is liable for a tax, interest, addition to tax, tax or penalty as a result of such an audit, each Person who was a member Partner during the taxable year of the Partnership that was audited audited, even if such Person is no longer a Partner (unless a Substituted Limited Partner has agreed to bear such liability in an appropriate document evidencing a transfer), shall pay to the Company Partnership an amount equal to such Person’s proportionate share of such liability, as determined by the ManagerGeneral Partner, based on the amount each such Person should have borne (computed at the tax rate used to compute the CompanyPartnership’s liability) had the CompanyPartnership’s tax return for such taxable year reflected the audit adjustment. The expenses , and the expense for the CompanyPartnership’s payment of such tax, interest, addition to tax, or tax and penalty shall be specially allocated to such Persons (or their successors) in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Steadfast Apartment REIT III, Inc.), Agreement of Limited Partnership (Steadfast Apartment REIT III, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. Cardone Equity Fund VI, LLC C-7 Operating Agreement The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 2 contracts

Samples: Operating Agreement (Cardone Equity Fund VI, LLC), Operating Agreement (Cardone Equity Fund VI, LLC)

Partnership Representative. the Manager is hereby designated as the “partnership representative” of the Company for purposes and within the meaning of the New Partnership Audit Rules (the “Partnership Representative”). The Members Company and each Member shall take all reasonable such actions as may be required to avoid the application effect such designation. The Partnership Representative shall designate from time to the Company time a “designated individual” to act on behalf of the centralized partnership audit provisions of sections 6221 through 6241 of the CodePartnership Representative, as amended by the Bipartisan Budget Act of 2015. If, however, and such provisions are found to apply to the Company, a member of the Manager or another appointed designated individual shall act as be subject to replacement by the Partnership Representative for in accordance with the purposes of IRS Code section 6221 through 6241and Treasury Regulations. In To the event extent that the member Partnership Representative does not make an election to apply the alternative method provided by Section 6226 of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership RepresentativeCode (or any analogous provision of state or local tax law), the Partnership Representative shall be have the Majority Interest owner from amongst authority and discretion to determine the Members. If portion of any imputed underpayment (within the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests meaning of the MembersNew Partnership Audit Rules) allocable to each Member. The Partnership Representative shall be authorized and required Each Member agrees to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to provide any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things information reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred requested by the Partnership Representative in carrying out its obligations hereunder shall be allocated order to and charged to determine whether any imputed underpayment (within the Company as an expense meaning of the Company for which New Partnership Audit Rules) may be modified in a manner consistent with the requirements of Code Section 6225(c), including any information that will enable the Partnership Representative to determine the portion of the imputed underpayment allocable to (A) a “tax-exempt entity” (as defined in Code Section 168(h)(2)), in the case of ordinary income, to a C corporation or, in the case of capital gain or qualified dividend income, to an individual. Each Member agrees that any payment by the Company of a partnership-level tax imposed with respect to the New Partnership Audit Rules shall be reimbursedtreated as paid with respect to such Member. Each Member shall promptly contribute the amount of its allocable share of any partnership-level tax upon request by the Manager and, to the extent a Member does not contribute such amount within 15 days after demand for payment thereof, the Company shall offset such amount against distributions to which such Member would otherwise be subsequently entitled pursuant to Section 4.02 and 4.03 (and such amounts shall be deemed distributed pursuant to those provisions). Each Member hereby agrees to indemnify and hold harmless the Company, the other Members, the Partnership Representative and the Manager from and against any liability (including any liability for partnership-level taxes imposed with respect to the New Partnership Audit Rules) with respect to income attributable to or distributions or other payment to such Member. Each Member agrees, upon the request of the Partnership Representative, to file an amended United States federal income tax return for the taxable year which includes the end of the taxable year to which an imputed underpayment relates and to pay on a timely basis any and all resulting taxes, additions to tax, penalties and interest due in connection with such tax return in accordance with Code Section 6225(c)(2).

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Generation Income Properties, Inc.), Limited Liability Company Agreement (Generation Income Properties, Inc.)

Partnership Representative. For tax returns filed with respect to fiscal years beginning after December 31, 2017, this Section 10.3.B shall apply, and references to Code sections in this Section 10.3.B refer to the Code sections as in effect after taking into account the amendments provided by the 2015 Budget Act. The Members General Partner shall take all such reasonable actions to avoid as it believes will enhance the avoidance of the application to the Company Partnership of the centralized partnership audit provisions of sections Sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to do apply to the CompanyPartnership, a member of the Manager or another appointed individual General Partner shall also act as the Partnership Representative “partnership representative” for the purposes of IRS Code section said Sections 6221 through 6241. In the event the member 6241 of the Manager is no longer a Member in Code. Each Partner hereby consents to the Company, and no other individual has been appointed General Partner serving as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests partnership representative and agrees upon request of the MembersGeneral Partner to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such further documents as may be necessary or appropriate to evidence such consent. The Partnership Representative shall partnership representative will be authorized and required to represent the Company Partnership (at the Partnership’s expense) in connection with all examinations of the CompanyPartnership’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority , and to (1i) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the CompanyPartnership’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of taxsuch event, the Partnership Representative partnership representative shall duly and timely elect under section Section 6226 of the IRS Code that to require each Person who was a Member Partner during the taxable year of Partnership that was audited to personally bear any tax, interest, addition to tax, interest and penalty resulting from adjustments based on such audit and shall notify each such Person (and the Internal Revenue Service) of their share of such audit adjustments and, if for any reason, the Company Partnership is liable for a tax, interest, addition to tax, tax or penalty as a result of such an audit, each Person who was a member Partner during the taxable year of the Partnership that was audited audited, even if such Person is no longer a Partner (unless a Substituted Limited Partner has agreed to bear such liability in an appropriate document evidencing a transfer under Article 11 hereof), shall pay to the Company Partnership an amount equal to such Person’s proportionate share of such liability, as determined by the ManagerGeneral Partner, based on the amount each such Person should have borne (computed at the tax rate used to compute the CompanyPartnership’s liability) had the CompanyPartnership’s tax return for such taxable year reflected the audit adjustment. The expenses , and the expense for the CompanyPartnership’s payment of such tax, interest, addition to tax, or tax and penalty shall be specially allocated to such Persons (or their successors) in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 2 contracts

Samples: Limited Partnership Agreement (Carter Validus Mission Critical REIT II, Inc.), Limited Partnership Agreement (Carter Validus Mission Critical REIT II, Inc.)

Partnership Representative. The For all taxable years beginning on or after January 1, 2018, the Managing Member (or any other Person designated by the Managing Member) shall be designated as the “partnership representative” (the “Partnership Representative”), as defined in Code Section 6223 (as in effect following the effective date of its amendment by Section 1101 of H.R. 1314, the “Bipartisan Budget Act of 2015”) and the Company and the Members shall take complete any necessary actions (including executing any required certificates or other documents) to effect such designation. The Company shall pay and be responsible for all reasonable actions to avoid third-party costs incurred by the application to Partnership Representative in performing its duties and any costs and expenses incurred by the Partnership Representative in connection with any audit of a Company income tax return. The Partnership Representative shall make, if available, the election described in Code Section 6226(a)(1) (as in effect following the effective date of the centralized partnership audit provisions its amendment by Section 1101 of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015). IfIf the Company becomes liable for any taxes, howeverinterest or penalties under Code Section 6225 (as in effect following the effective date of its amendment by Section 1101 of the Bipartisan Budget Act of 2015), (i) each Person that was a Member of the Company for the taxable year to which such liability relates shall indemnify, defend and hold harmless the Company for such Person’s allocable share of the amount of such tax liability, including any interest and penalties associated therewith, (ii) the Company may cause the Members (including any former Member) to whom such liability relates to pay, and each such Member hereby agrees to pay, such provisions are found to apply amount to the Company, and such amount shall not be treated as a member Capital Contribution, and (iii) without limiting a Member’s (or former Member’s) obligations under this Section 8.4(e), any amount paid by the Company that is attributable to a Member and that is not paid by such Member pursuant to clause (ii) above, shall be subject to the provisions of Section 4.5. The provisions contained in this Section 8.4(e) shall survive the dissolution of the Manager Company and the withdrawal of any Member or another appointed individual shall act as the Partnership Representative for the purposes assignment of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member any Member’s interest in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Restructuring Support Agreement (Global Brokerage, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid Original Member Representative is hereby designated as the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 Company’s “tax matters partner” for U.S. federal income tax purposes under Section 6231(a)(7) of the Code, as amended in effect for taxable years of the Company beginning on or before December 31, 2017, and as the Company’s “partnership representative” as that term is defined in the Revised Partnership Audit Provisions for taxable years of the Company beginning after December 31, 2017 and ending on or prior to December 31, 2021. The Managing Member is hereby designated as the “partnership representative” as that term is defined in Revised Partnership Audit Provisions for taxable years of the Company beginning on or after January 1, 2022. In addition, the Managing Member is hereby authorized to designate or remove any other Person selected by the Bipartisan Budget Act of 2015Managing Member as the Partnership Representative. IfFor each Fiscal Year in which the Partnership Representative is an entity, however, such provisions are found to apply to the Company, a member of the Manager or another appointed Company shall appoint an individual shall act as identified by the Partnership Representative for such Fiscal Year to act on its behalf (the purposes “Designated Individual”) in accordance with the applicable Treasury Regulations or analogous provisions of IRS Code section 6221 through 6241state or local Law. In the event the member Each Member hereby expressly consents to such designations and agrees to take, and that each of the Manager Company and the Managing Member is no longer a Member in authorized to take (or cause the CompanyCompany to take), and no such other individual has been appointed actions as the Partnership Representativemay be necessary or advisable pursuant to Treasury Regulations or other Internal Revenue Service or Treasury guidance or state or local Law to cause such designations or evidence such Member’s consent to such designations. (b) Subject to this Section 5.08, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to act on behalf of the Company in connection with, make all relevant decisions regarding application of, and to exercise the rights and powers provided for in the Revised Partnership Audit Provisions, including making any elections under the Revised Partnership Audit Provisions or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any action, audit or examination before the IRS or any other income tax authority (1) sign consentseach, enter into settlement an “Audit”), and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services and other expenses reasonably incurred in connection therewith. In Notwithstanding the event foregoing or anything to the contrary in this Agreement, with respect to any “imputed underpayment” arising in connection with any Audit relating to any taxable year for which the Original Member Representative is the Partnership Representative, at the election of the Managing Member (in its reasonable discretion), the Original Member Representative shall be required to make (or cause to be made) an adjustment resulting in an underpayment election under Section 6226(a) of taxthe Code (or any analogous provision of state or local Law). (c) Without limiting the foregoing, the Partnership Representative shall duly and timely elect under section 6226 give prompt written notice to the Original Member Representative of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear commencement of any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, Audit of the Company is liable for or any of its Subsidiaries the resolution of which would reasonably be expected to have a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay disproportionate (compared to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based Managing Member) and material adverse effect on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportionsOriginal Members. The Partnership Representative shall have (i) keep the Original Member Representative reasonably informed of the material developments and status of any such Audit for taxable years beginning on or after January 1, 2022 (a “Specified Audit”), and (ii) permit the Original Member Representative (or its designee) to participate (including using separate counsel), in each case at the Original Members’ sole cost and expense, in any such Specified Audit to the maximum extent permitted by the applicable tax authority, and (iii) promptly notify the Original Member Representative of receipt of a notice of a final decision-making authority partnership adjustment (or equivalent under applicable Laws) or a final decision of a court or IRS Independent Office of Appeals panel (or equivalent body under applicable Laws) with respect to all federal income tax matters involving the Companysuch Specified Audit. The Partnership Representative or the Company shall promptly provide the Original Member Representative with copies of all material correspondence between the Partnership Representative or the Company (as applicable) and any governmental entity in connection with such Specified Audit and shall give the Original Member Representative a reasonable opportunity to review and comment on any material correspondence, submission (including settlement or compromise offers) or filing in connection with any such Specified Audit. Additionally, without limiting the final sentence of this Section 5.08(c), the Partnership Representative shall not (and the Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or abandon any Specified Audit in a manner that would reasonably be expected to have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members agree without the Original Member Representative’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Without limiting the final sentence of this Section 5.08(c), the Partnership Representative shall obtain the prior written consent of the Original Member Representative (which consent shall not be unreasonably withheld, delayed or conditioned) before taking any material action under the Revised Partnership Audit Provisions that would reasonably be expected to cooperate with have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members. Notwithstanding the foregoing, (i) each of the obligations of the Partnership Representative and the Company, and rights of the Original Member Representative and Original Members, under this Section 5.08(c) shall terminate and have no further force or effect from and after the date that the Original Members no longer own 20% of the combined Class A Units and Class B Units, and (ii) with respect to do or refrain from doing any or all things reasonably required by “imputed underpayment” arising in connection with any Audit, at the election of the Managing Member (in its reasonable discretion), the Partnership Representative shall be required to conduct such proceedings. Any reasonable direct out-of-pocket expense make (or cause to be made) an election under Section 6226(a) of the Code (or any analogous provision of state or local Law). (d) All expenses incurred by the Partnership Representative or Designated Individual in carrying out connection with its obligations hereunder duties as partnership representative or designated individual, as applicable, shall be allocated to and charged to the Company as an expense expenses of the Company (including, for which the avoidance of doubt, any costs and expenses incurred in connection with any claims asserted against the Partnership Representative or Designated Individual, as applicable), and the Company shall reimburse and indemnify the Partnership Representative or Designated Individual, as applicable, for all such expenses and costs. Nothing herein shall be reimbursedconstrued to restrict the Partnership Representative or Designated Individual from engaging lawyers, accountants, tax advisers, or other professional advisers or experts to assist the Partnership Representative or Designated Individual in discharging its duties hereunder. Neither the Partnership Representative nor Designated Individual shall be liable to the Company, any Member or any Affiliate thereof for any costs or losses to any Persons, any diminution in value or any liability whatsoever arising as a result of the performance of its duties pursuant to this Section 5.08 absent (i) willful breach of any provision of this Section 5.08 or (ii) bad faith, fraud, or willful misconduct on the part of the Partnership Representative or Designated Individual, as applicable.

Appears in 1 contract

Samples: Business Combination Agreement (ArcLight Clean Transition Corp. II)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. Tulsa Real Estate Fund, LLC C-7 Company Agreement The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Company Agreement (Tulsa Real Estate Fund, LLC)

Partnership Representative. For taxable years ending prior to January 1, 2018, The Members the Manager shall take all reasonable actions to avoid be the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 Company’s “tax matters partner” (as such term is defined in Section 6231(a)(7) of the Code, as amended prior to amendment by the Bipartisan Budget Act Act) (the “Tax Matters Member”), with all of 2015the powers that accompany such status (except as otherwise provided in this Agreement). IfFor taxable years ending after December 31, however2017, such provisions are found the Manager shall have the right to apply be or to appoint the Company’s “partnership representative” and, a member if applicable, the designated individual within the meaning of Code Section 6223 (the “Partnership Representative”) with sole authority to act on behalf of the Manager or another appointed individual shall act as Company for purposes of the Partnership Representative for Audit Procedures. Promptly following the purposes of IRS Code section 6221 through 6241. In the event the member written request of the Manager is no longer a Tax Matters Member in the Company, and no other individual has been appointed as or the Partnership Representative, the Company shall, to the fullest extent permitted by law, reimburse and indemnify the Tax Matters Member or the Partnership Representative shall be Representative, as applicable, for all reasonable expenses, including, without limitation, reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the Majority Interest owner from amongst Tax Matters Member or the Partnership Representative, as applicable, in connection with any administrative or judicial proceeding with respect to the tax liability of the Members. If Company or any of the Majority Members. Furthermore, in the event the Company is liable under the Partnership Audit Procedures for any imputed underpayment (including interest and penalties) with respect to items of Company income, gain, loss, deduction or credit attributable to a Member for the applicable year, such Member shall promptly reimburse the Company for such amount and such reimbursement shall not be considered a Capital Contribution to the Company by such Member. The foregoing sentence shall apply even if the applicable Member is unable or unwilling to serveno longer a member of the Company at the time the Company becomes liable for such imputed underpayment. Each Member agrees that, upon request of the Partnership Representative Representative, such Member shall take such actions and provide any such information as may be appointed from amongst necessary or desirable (as determined by the remaining Members by a Majority Partnership Representative) in connection with any administrative or judicial proceeding with respect to the tax liability of Interests the Company or any of the Members. The Partnership Representative provisions of this Section 3.5 shall be authorized and required to represent survive the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense termination of the Company and shall remain binding on the Members for which as long a period of time as is necessary to resolve with the Partnership Representative shall be reimbursedInternal Revenue Service (or state or local taxing authorities, as the case may be) any and all matters regarding the U.S. federal income taxation of the Company or the Members.

Appears in 1 contract

Samples: Limited Liability Company Agreement

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to the Company “partnership representative” (as such term is defined in Section 6223 of the centralized partnership audit provisions of sections 6221 through 6241 BBA Audit Rules) of the Code, as amended Partnership (the “Partnership Representative”) shall be the General Partner or any successor designated by the Bipartisan Budget Act General Partner. Each Partner, by its execution of 2015. Ifthis Agreement, however, consents to such provisions are found to apply to the Company, a member designation of the Manager Partnership Representative, and agrees to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or another appointed individual shall act as appropriate to evidence such consent. To the extent and in the manner provided by applicable Code sections and Treasury Regulations thereunder, the Partnership Representative (i) shall furnish the name, address and taxpayer identification number of each Partner to the IRS and (ii) shall inform each Partner of administrative or judicial proceedings for the purposes adjustment of IRS Partnership items required to be taken into account by a Partner for income tax purposes. The Partnership Representative shall act reasonably at all times and keep the other Partners reasonably informed about its actions. (b) Each Partner shall be considered to have retained such rights (and obligations, if any) as are provided for under the Code section 6221 through 6241or any other applicable law with respect to any examination, proposed adjustment or proceeding relating to Partnership tax items. In The Partnership Representative shall notify the event Partners, within thirty (30) days after the member Partnership Representative receives notice from the IRS, of the Manager is no longer a Member in the Companyany administrative proceeding with respect to an examination of, or proposed adjustment to, any Partnership tax items, and no other individual has been appointed as shall promptly provide the Partners with copies of relevant written materials. The Partnership RepresentativeRepresentative shall provide the Partners with notice of its intention to extend the statute of limitations or file a tax claim in any court at least ten (10) days before taking such action. (c) Unless the Majority Class A Limited Partners direct otherwise, the Partnership Representative shall be use reasonable best efforts to make the Majority Interest owner from amongst election described in Section 6226 of the MembersBBA Audit Rules with respect to each final partnership adjustment. If the Majority Member Partnership is unable or unwilling subject to serveany tax liabilities under the BBA Audit Rules, the Partnership Representative General Partner shall use reasonable efforts to allocate such liabilities among the Partners in a fair and equitable manner, taking into account any modifications attributable to such a member pursuant to Section 6225(c) of the BBA Audit Rules (if applicable). Any Tax Liabilities so allocated shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty treated as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay withholding taxes subject to the Company an amount equal to such Person’s proportionate share provisions of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedSection 8.6.

Appears in 1 contract

Samples: Limited Partnership Agreement (Healthcare Royalty, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code(a) WBA Acquisition 4, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall LLC will act as the Partnership Representative for unless otherwise removed by the purposes of IRS Code section 6221 through 6241Board. In the event the member The Partnership Representative, on behalf of the Manager is no longer a Member Company and its Members will be permitted to settle disputes with the Internal Revenue Service, extend the statute of limitations for any taxes, and take any other action, including making any election or filing under the Code, the regulations promulgated thereunder, or any other law or regulations that it in good faith believes to be in the Companybest interests of the Company or the Members and shall have all other powers needed to fully perform hereunder including the power to retain all attorneys and accountants of its choice and to file for administrative adjustments pursuant to Section 6227 of the Code, provided, however, that the Partnership Representative shall remain subject to the direction of the Board in all respects to the extent permitted by applicable law. The Partnership Representative shall promptly advise the Board of any tax proceedings with respect to the Company and no other individual has been appointed keep the Board reasonably informed of any material developments of any such proceedings. If the Company makes an election pursuant to Section 6226 of the Code with respect to an imputed underpayment, each Member shall comply with the corresponding requirements under the Budget Act. Each Member shall cooperate with the Partnership Representative to give effect to the requirements of and elections made by the Company pursuant to or as contemplated by the Budget Act. (b) The Company shall indemnify and hold harmless the Partnership Representative and its directors, officers, employees and agents from and against any loss, expense, damage or injury suffered or sustained by them by reason of any acts, omissions or alleged acts or omissions arising out of their activities on behalf of the Company as Partnership Representative, absent the gross negligence, willful misconduct or taking of action in bad faith of the Partnership Representative. (c) The Partnership Representative shall use commercially reasonable efforts, to either (i) reduce any imputed underpayment by modifications permitted under Section 6225(c) of the Code or Treasury Regulations promulgated thereunder or other relevant Treasury or IRS guidance, taking into account the tax status of UMass or (ii) make an election under Section 6226(a) of the Code. To the extent that the imputed underpayment is mitigated by modifications permitted under Section 6225(c) of the Code or Treasury Regulations promulgated thereunder, or other relevant Treasury or IRS guidance and such modifications relate to the status of UMass, the Partnership Representative shall be use commercially reasonable efforts to allocate to UMass the Majority Interest owner from amongst the Members. If the Majority Member is unable benefit of any such reduction or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests modification of the Members. required payment of the imputed underpayment attributable to the tax-exempt status of UMass. (d) The Partnership Representative foregoing covenants and indemnification obligation of the Members shall be authorized survive indefinitely and required shall not terminate, without regard to represent the Company with all examinations any transfer of a Member’s Units, withdrawal as a Member, or liquidation, dissolution or termination of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid Original Member Representative is hereby designated as the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 Company’s “tax matters partner” for U.S. federal income tax purposes under Section 6231(a)(7) of the Code, as amended in effect for taxable years of the Company beginning on or before December 31, 2017, and as the Company’s “partnership representative” as that term is defined in the Revised Partnership Audit Provisions for taxable years of the Company beginning after December 31, 2017 and ending on or prior to December 31, 2021. The Managing Member is hereby designated as the “partnership representative” as that term is defined in Revised Partnership Audit Provisions for taxable years of the Company beginning on or after January 1, 2022. In addition, the Managing Member is hereby authorized to designate or remove any other Person selected by the Bipartisan Budget Act of 2015Managing Member as the Partnership Representative. IfFor each Fiscal Year in which the Partnership Representative is an entity, however, such provisions are found to apply to the Company, a member of the Manager or another appointed Company shall appoint an individual shall act as identified by the Partnership Representative for such Fiscal Year to act on its behalf (the purposes “Designated Individual”) in accordance with the applicable Treasury Regulations or analogous provisions of IRS Code section 6221 through 6241state or local Law. In the event the member Each Member hereby expressly consents to such designations and agrees to take, and that each of the Manager Company and the Managing Member is no longer a Member in authorized to take (or cause the CompanyCompany to take), and no such other individual has been appointed actions as the Partnership Representativemay be necessary or advisable pursuant to Treasury Regulations or other Internal Revenue Service or Treasury guidance or state or local Law to cause such designations or evidence such Member’s consent to such designations. (b) Subject to this Section 5.08, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to act on behalf of the Company in connection with, make all relevant decisions regarding application of, and to exercise the rights and powers provided for in the Revised Partnership Audit Provisions, including making any elections under the Revised Partnership Audit Provisions or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any action, audit or examination before the IRS or any other income tax authority (1) sign consentseach, enter into settlement an “Audit”), and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services and other expenses reasonably incurred in connection therewith. In Notwithstanding the event foregoing or anything to the contrary in this Agreement, with respect to any “imputed underpayment” arising in connection with any Audit relating to any taxable year for which the Original Member Representative is the Partnership Representative, at the election of the Managing Member (in its reasonable discretion), the Original Member Representative shall be required to make (or cause to be made) an adjustment resulting in an underpayment election under Section 6226(a) of taxthe Code (or any analogous provision of state or local Law). (c) Without limiting the foregoing, the Partnership Representative shall duly and timely elect under section 6226 give prompt written notice to the Original Member Representative of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear commencement of any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, Audit of the Company is liable for or any of its Subsidiaries the resolution of which would reasonably be expected to have a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay disproportionate (compared to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based Managing Member) and material adverse effect on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportionsOriginal Members. The Partnership Representative shall have (i) keep the Original Member Representative reasonably informed of the material developments and status of any such Audit for taxable years beginning on or after January 1, 2022 (a “Specified Audit”), (ii) permit the Original Member Representative (or its designee) to participate (including using separate counsel), in each case at the Original Members’ sole cost and expense, in any such Specified Audit to the maximum extent permitted by the applicable tax authority, and (iii) promptly notify the Original Member Representative of receipt of a notice of a final decision-making authority partnership adjustment (or equivalent under applicable Laws) or a final decision of a court or IRS Independent Office of Appeals panel (or equivalent body under applicable Laws) with respect to all federal income tax matters involving the Companysuch Specified Audit. The Partnership Representative or the Company shall promptly provide the Original Member Representative with copies of all material correspondence between the Partnership Representative or the Company (as applicable) and any governmental entity in connection with such Specified Audit and shall give the Original Member Representative a reasonable opportunity to review and comment on any material correspondence, submission (including settlement or compromise offers) or filing in connection with any such Specified Audit. Additionally, without limiting the final sentence of this Section 5.08(c), the Partnership Representative shall not (and the Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or abandon any Specified Audit in a manner that would reasonably be expected to have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members agree without the Original Member Representative’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Without limiting the final sentence of this Section 5.08(c), the Partnership Representative shall obtain the prior written consent of the Original Member Representative (which consent shall not be unreasonably withheld, delayed or conditioned) before taking any material action under the Revised Partnership Audit Provisions that would reasonably be expected to cooperate with have a disproportionate (compared to the Managing Member) and material adverse effect on the Original Members. Notwithstanding the foregoing, (i) each of the obligations of the Partnership Representative and the Company, and rights of the Original Member Representative and Original Members, under this Section 5.08(c) shall terminate and have no further force or effect from and after the date that the Original Members no longer own 20% of the combined Class A Units and Class B Units, and (ii) with respect to do or refrain from doing any or all things reasonably required by “imputed underpayment” arising in connection with any Audit, at the election of the Managing Member (in its reasonable discretion), the Partnership Representative shall be required to conduct such proceedings. Any reasonable direct out-of-pocket expense make (or cause to be made) an election under Section 6226(a) of the Code (or any analogous provision of state or local Law). (d) All expenses incurred by the Partnership Representative or Designated Individual in carrying out connection with its obligations hereunder duties as partnership representative or designated individual, as applicable, shall be allocated to and charged to the Company as an expense expenses of the Company (including, for which the avoidance of doubt, any costs and expenses incurred in connection with any claims asserted against the Partnership Representative or Designated Individual, as applicable), and the Company shall reimburse and indemnify the Partnership Representative or Designated Individual, as applicable, for all such expenses and costs. Nothing herein shall be reimbursedconstrued to restrict the Partnership Representative or Designated Individual from engaging lawyers, accountants, tax advisers, or other professional advisers or experts to assist the Partnership Representative or Designated Individual in discharging its duties hereunder. Neither the Partnership Representative nor Designated Individual shall be liable to the Company, any Member or any Affiliate thereof for any costs or losses to any Persons, any diminution in value or any liability whatsoever arising as a result of the performance of its duties pursuant to this Section 5.08 absent (i) willful breach of any provision of this Section 5.08 or (ii) bad faith, fraud, or willful misconduct on the part of the Partnership Representative or Designated Individual, as applicable.

Appears in 1 contract

Samples: Limited Liability Company Agreement (OPAL Fuels Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Managing Member with the initial Partnership Representative being Clear Secure. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Managing Member and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests in the Company for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 6.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 6.01(c) shall be allocated implemented through adjustments to and charged distributions otherwise payable to such Member as determined in accordance with Section 5.03; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to distribution or required capital contribution of such Member or former Member. Any amount withheld from distributions pursuant to this Section 6.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 6.01(c) shall survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s interest.

Appears in 1 contract

Samples: Operating Agreement (Clear Secure, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions Treasurer is designated to avoid act as the application to partnership representative of the Company pursuant to Code section 6223 (the “Partnership Representative”), with the authority to act on behalf of the centralized partnership audit provisions Company under subchapter C of sections 6221 through 6241 chapter 63 of subtitle F of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall will be authorized and required entitled to represent reimbursement from the Company with all examinations of for costs incurred in performing the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. duties under this Section 3.03. (b) The Partnership Representative shall have will allocate any tax liability payable (and actually paid) by the sole authority Company pursuant to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event subchapter C of an adjustment resulting in an underpayment chapter 63 of tax, the Partnership Representative shall duly and timely elect under section 6226 subtitle F of the IRS Code that among the Persons who were Members during any “reviewed year” (as defined in Code section 6225(d)(1)) in a manner consistent with the manner in which income, gain, loss, deduction, and credit was allocated among such Persons for such reviewed year pursuant to the terms of this Agreement, to the greatest extent possible. To the fullest extent permitted by law, each Person who was a Member during any reviewed year will indemnify and hold harmless the taxable year that was audited personally bear any taxCompany and the other Members (including other former, interest, addition to taxcurrent, and penalty resulting future Members, as applicable) from and against any liability for Company-level taxes allocated to such adjustments and, if for any reason, Person under this Section 3.03(b). Each Member or former Member will pay all Company-level tax liabilities in a prompt manner to the Company is liable on written request by the Company. The liability and obligations of each Member under this Section 3.03(b) will survive any transfer of a Membership Interest by such Member, or such Member otherwise ceasing to be a Member under this Agreement. (c) The Members must take all actions reasonably requested by the Partnership Representative, including paying any imputed underpayment pursuant to an election under Code section 6226, filing any amended tax returns, and paying any tax due in accordance with Code section 6225(c)(2). Each Member must treat any Company item consistently on all tax returns of the Member with the Company’s treatment of the item. Any deficiency for a taxtaxes imposed on any Member (including penalties, interest, addition additions to tax, or penalty interest imposed with respect to such taxes and taxes imposed pursuant to Code section 6226) will be paid by the Member and, if required to be paid by the Company, will be recoverable from the Member as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay provided in Section 3.03(b). (d) The Partnership Representative will not be liable to the Company an amount equal to such Person’s proportionate share of such liabilityor any Member or Person claiming through a Member for any act or omission taken or suffered by the Partnership Representative, as determined by applicable, in such capacity in good faith and in the Manager, based on reasonable belief that such act or omission is in or is not opposed to the amount each such Person should have borne (computed at the rate used to compute best interests of the Company’s liability) had , and the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with Company must indemnify the Partnership Representative against all claims, liabilities, damages, losses, fees, costs and to do expenses (including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or refrain from doing other costs and reasonable expenses of investigating or defending against any claim or all things reasonably required by alleged claim) of any nature whatsoever, known or unknown, liquidated or unliquidated in respect of any claim based upon such act or omission, so long as the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative act or omission is not in carrying out its obligations hereunder shall be allocated to violation of this Agreement and charged to the Company as an expense does not constitute gross negligence, fraud or a willful violation of the Company for which the Partnership Representative shall be reimbursedlaw.

Appears in 1 contract

Samples: Operating Agreement (Auor Capital Fund v LLC)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid hereby appoint CSSE as the application to “partnership representative” (the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code“Partnership Representative”) as provided in Code Section 6223(a). The Members hereby appoint Wxxxxxx X. Xxxxxxx, Xx., as amended by the Bipartisan Budget Act sole person authorized to act on behalf of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for (the purposes “Designated Individual”). The Designated Individual may be removed at any time by the Board. The Partnership Representative shall resign if it is no longer a Member, and the Designated Individual shall resign if he is no longer an officer of IRS Code section 6221 through 6241the Partnership Representative. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as resignation of the Partnership Representative, the Partnership Representative other Members shall be select a replacement. In the Majority Interest owner from amongst event of the Membersresignation or removal of the Designated Individual, the Board shall select a replacement. If the Majority Member is unable resignation or unwilling removal of the Partnership Representative or Designated Individual occurs prior to servethe effectiveness of the resignation or removal under applicable Treasury Regulations or other administrative guidance, the Partnership Representative or Designated Individual that has resigned or been removed shall be appointed from amongst not take any actions in its capacity as Partnership Representative or Designated Individual except as directed by the remaining Members by other Members, in the case of a Majority Partnership Representative that has resigned, or the Board, in the case of Interests of the Members. a Designated Individual that has resigned or been removed. (b) The Partnership Representative shall be is authorized and required to represent the Company in connection with all examinations of the Company’s affairs by tax authoritiesTaxing Authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Partnership Representative shall have promptly notify the sole authority to (1) sign consentsPreferred Member if any tax return of the Company is audited and upon the receipt of a notice of final partnership administrative adjustment or final partnership adjustment, enter into settlement and other agreements with such authorities with respect to shall keep the Preferred Member reasonably informed of the status of any such examinations or proceedings tax audit and (ii) to expend resulting administrative and judicial proceedings. Without the Company’s funds for professional services incurred in connection therewith. In consent of the event of an adjustment resulting in an underpayment of taxPreferred Member, the Partnership Representative shall duly and timely elect under section 6226 not extend the statute of limitations, file a request for administrative adjustment, file suit relating to any Company tax refund or deficiency or enter into any settlement agreement relating to items of income, gain, loss or deduction of the IRS Company with any Taxing Authority. (c) To the extent permitted by applicable law and regulations, the Company will annually elect out of the partnership audit procedures enacted under Section 1101 of the BBA (the “BBA Procedures”). For any year in which applicable law and regulations do not permit the Company to elect out of the BBA Procedures, then within forty-five (45) days of any notice of final partnership adjustment, the Company will elect the alternative procedure under Code that Section 6226, and furnish to the Internal Revenue Service and each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition or years to tax, and penalty resulting from such adjustments and, if for any reason, which the Company is liable for notice of final partnership adjustment relates a tax, interest, addition to tax, or penalty as a result statement of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such PersonMember’s proportionate share of any adjustment set forth in the notice of final partnership adjustment. (d) Each Member agrees that such liabilityMember shall not treat any Company item inconsistently on such Member’s federal, as determined by state, foreign or other income tax return with the Manager, based treatment of the item on the amount each such Person should have borne (computed at the rate used to compute the Company’s liabilityreturn. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or interest imposed with respect to such taxes and any taxes imposed pursuant to Code Section 6226) had will be paid by such Member and if required to be paid (and actually paid) by the Company’s tax return for , will be recoverable from such taxable year reflected Member as provided in Section 6.03(d). (e) Except as otherwise provided herein, the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect sole discretion to all federal make any determination regarding income tax matters involving elections it deems advisable on behalf of the Company. The Members agree to cooperate with ; provided, that the Partnership Representative and to do or refrain from doing any or all things reasonably required will make an election under Code Section 754, if requested in writing by a Member. (f) Notwithstanding the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which foregoing, the Partnership Representative shall not take any action with respect to income taxes to the extent such action will have a disproportionately adverse impact upon the Preferred Member as compared with the other Members, without the consent of the Preferred Member Managers, not to be reimbursedunreasonably withheld, conditioned, or delayed.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Chicken Soup for the Soul Entertainment, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative (a) Atlantic International Corp. shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling person authorized to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests act on behalf of the Members. The Company (the “Partnership Representative shall be authorized and required Representative”) pursuant to represent the Company with all examinations Section 6223(a) of the Company’s affairs by tax authorities, including resulting administrative Code and judicial proceedings. The the Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to appoint on behalf of the Company any such examinations or proceedings and (ii) to expend “designated individual” under Section 6223 of the Company’s funds for professional services incurred in connection therewithCode. In the event of an adjustment resulting in an underpayment of taxsuch capacity, the Partnership Representative shall duly have the right to make on behalf of the Company any election and timely elect take such other action available to the Partnership Representative under section the Code, provided that any material decision must first be approved by Board of Managers. The Members agree to negotiate in good faith any amendments deemed advisable or necessary to reflect the issuance of any guidance, including, without limitation, amendments to the Code; or issuance of Treasury Regulations, Revenue Rulings or Revenue Procedures with respect to the 2015 Act. (b) If the Company receives notice of a final partnership adjustment pursuant to Section 6231 of the Code, the Partnership Representative shall, unless otherwise directed by the Board of Managers, within forty-five (45) days after the date of the notice of final partnership adjustment, cause the Company to make the election under Section 6226 of the IRS Code that each Person who was a Member during in the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from manner provided by the Internal Revenue Service. Upon making such adjustments and, if for any reasonelection, the Company is liable for a tax, interest, addition shall furnish to tax, or penalty as a result each Member of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Personfor the year under audit a statement reflecting the Member’s proportionate share of such liabilitythe adjusted items as determined in the notice of final partnership adjustment, as determined by the ManagerPartnership Representative on a good faith basis, based on the amount and each such Person should have borne (computed at Member, including former Members, shall take such adjustment into account as required under Section 6226(b) of the rate used to compute the Company’s liability) had the Company’s tax return Code and shall be liable for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such any related, income tax, interest, addition to penalty or additional amount. If the Company does not make an election under Section 6226(b) of the Code or such election is ineffective, and the Company is held directly liable for any additional income tax, interest, penalty or penalty additional amount under the Code or other applicable law as a result of an adjustment to any of the Company’s federal, state or local income tax returns, each Member shall be specially allocated required, upon thirty (30) written demand from the Company to such Persons in such proportionspay the Company its share (as reasonably determined by the Partnership Representative) of any additional tax, interest, penalty and additional amount penalty due. The Partnership Representative shall have Company may treat any amount owed pursuant to this Section 11.4(b) as a distribution to the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree Member owing such amount. (c) Each Member agrees to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required requested by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged with respect to the Company as an expense conduct of the Company any administrative and judicial proceedings pursuant to this Section 11.4. If any state, local or non-U.S. tax law provides for which a “tax matters partner”, “partnership representative” or person having similar rights, powers, authority or obligations, the Partnership Representative shall also serve in such capacity. (d) This Section 11.4 shall survive a Member’s ceasing to be reimburseda Member of the Company and/or the termination, dissolution, liquidation and winding up of the Company.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (SeqLL, Inc.)

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Partnership Representative. The Members shall take all reasonable actions to avoid Board may appoint and replace a “partnership representative” (as such term is defined in Code Section 6223(a)) (the application to “Partnership Representative”). The initial Partnership Representative of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the MembersMN8. The Partnership Representative shall have the power to appoint a “designated individual” within the meaning of Section. § 301.6223-1(b)(3) of the Regulations and to replace such individual from time to time. The Partnership Representative shall perform its duties under the direction and guidance of the Board and shall be authorized and required to represent the Company (at the Company’s expense), subject to the restrictions set forth in this Section 9.1, in connection with all examinations of the Company’s affairs by tax authorities, including any resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services reasonably incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly Each Member and timely elect under section 6226 of the IRS Code former Member that each Person who was a Member held any Membership Interests during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such reviewed Fiscal Year (an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability“Interested Member”) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative Company and to do or refrain from doing any or all things reasonably required requested by the Partnership Representative Company with respect to the conduct of such proceedings. Any reasonable direct out-of-pocket expense incurred by the The Partnership Representative shall notify the Interested Members in carrying out its obligations hereunder shall be allocated to and charged writing within ten (10) Business Days of the initiation of, or receipt of notice regarding, any examination, audit or other tax proceeding relating to the Company as an expense Company, and will keep the Interested Members reasonably informed of the Company for progress of any such examinations, audits or other proceedings, shall provide the Interested Members with information on a full and timely basis, and shall not settle any examination or controversy concerning the Company’s affairs by tax authorities without the written consent of the Board, which consent shall not be unreasonably withheld or delayed. Subject to the consent of the Board, the Partnership Representative shall determine whether any partnership adjustment to each Interested Member shall be reimbursedmade through the application of the procedures established pursuant to Code Section 6225(c) or through an election and the furnishing of statements pursuant to Code Section 6226. Each Member further agrees to cooperate in taking such actions as may be required to cause any election made by the Company to be effective and to provide the Partnership Representative with documentation necessary in connection with its compliance with the provisions of this Section 9.

Appears in 1 contract

Samples: Limited Liability Company Agreement (MN8 Energy, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid (a) For any taxable year of the application Company in which, and to the Company of extent that, the centralized partnership audit provisions of sections 6221 through 6241 Subchapter C of Chapter 63 of the Code, as amended by the Bipartisan Budget Act of 2015. If2015 (together with any proposed, howevertemporary or final Treasury Regulations promulgated at any time thereunder, such provisions are found to the “Post-TEFRA Partnership Audit Rules”) apply to the Company, the Members shall appoint for the Company a member person to serve as the “Partnership Representative,” as such term is defined in Section 6223(a) of the Manager or another appointed individual Post-TEFRA Partnership Audit Rules. The Members hereby appoint Sponsor as the initial Partnership Representative. The Company shall act as reimburse the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member all expenses reasonably incurred in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company connection with all examinations of the Company’s affairs by tax authoritiesany taxing authority, including any resulting administrative tax proceedings, and judicial proceedingsis authorized to expend Company funds for professional services and costs associated therewith. The Partnership Representative may rely on the advice or services of any lawyers, accountants, tax advisers, or other professional advisers or experts and shall not be liable for any damages, costs or losses to any persons, any diminution in value or any liability whatsoever arising as a result of its so relying. (b) The Partnership Representative shall promptly provide the Company and all Members with copies of any material notices received by the Partnership Representative in connection with any proceeding or potential adjustment relating to the Company that is subject to the Post-TEFRA Partnership Audit Rules, and shall use commercially reasonable efforts to keep the Members informed of all such proceedings or potential adjustments. (c) The Partnership Representative shall have the sole authority to act on behalf of the Company and, subject to the approval of an affirmative vote of the Members holding at least a majority of the outstanding Common Units entitled to vote as to any material decisions, make all relevant decisions regarding application of the Post-TEFRA Partnership Audit Rules, including, but not limited to, any elections under the Post-TEFRA Partnership Audit Rules or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any proceeding before the Internal Revenue Service if the Members or any of their constituent partners or members could be affected thereby. (1d) sign consentsNotwithstanding other provisions of this Agreement to the contrary, enter into settlement and other agreements with such authorities if any “partnership adjustment” (as defined in Section 6241(2) of the Code) is determined with respect to any such examinations or proceedings and (ii) to expend the Company’s funds , the Partnership Representative, subject to the approval of affirmative vote of the Members holding at least a majority of the outstanding Common Units entitled to vote, may cause the Company to elect pursuant to Section 6226 of the Code to have such adjustment passed through to the Members for professional services incurred in connection therewiththe year to which the adjustment relates (i.e., the “reviewed year” within the meaning of Section 6225(d)(1) of the Code). In the event of an adjustment resulting in an underpayment of tax, that the Partnership Representative shall duly and timely has not caused the Company to so elect under section pursuant to Section 6226 of the IRS Code Code, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Code) or “partnership adjustment” that each Person who was a Member during does not give rise to an “imputed underpayment” shall be apportioned among the Members of the Company for the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from in which the adjustment is finalized in such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty manner as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, may be necessary (as determined by the ManagerPartnership Representative in good faith), so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment and any associated interest and penalties are borne by the Members based on upon their interests in the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses Company for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. reviewed year. (e) The Members agree to cooperate with the Partnership Representative and in good faith to do or refrain from doing any or all things reasonably required timely provide information requested by the Partnership Representative as needed to conduct comply with the Post-TEFRA Partnership Audit Rules, including without limitation to make (and take full advantage of) any elections available to the Company under the Post-TEFRA Partnership Audit Rules. Each Member agrees that, upon request of the Partnership, such proceedings. Any reasonable direct out-of-pocket expense incurred Member shall take such actions as may be necessary or desirable (as determined by the Partnership Representative in carrying out its obligations hereunder shall be allocated Representative) to and charged to (i) allow the Company as an expense to comply with the provisions of Section 6226 of the Code so that any “partnership adjustments” are taken into account by the Members rather than the Company for which or (ii) file amended tax returns with respect to any “reviewed year” (within the Partnership Representative meaning of Section 6225(d)(1) of the Code) to reduce the amount of any “partnership adjustment” otherwise required to be taken into account by the Company. The provisions contained in this Section 13.05(e) shall be reimbursedsurvive the dissolution of the Company, the withdrawal of any Member, and/or transfer of any Member’s interest in the Company.” (vi) Section 15.01(a) of the Operating Agreement is hereby amended and restated to read in its entirety as follows:

Appears in 1 contract

Samples: Limited Liability Company Agreement (Longeveron LLC)

Partnership Representative. The Members shall take all reasonable actions to avoid the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1i) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Operating Agreement

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Managing Member with the initial Partnership Representative being RocketCo. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Managing Member and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests in the Company for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 6.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 6.01(c) shall be allocated implemented through adjustments to and charged distributions otherwise payable to such Member as determined in accordance with Section 5.03; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to distribution or required capital contribution of such Member or former Member. Any amount withheld from distributions pursuant to this Section 6.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 6.01(c) shall survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s interest.

Appears in 1 contract

Samples: Operating Agreement (Rocket Companies, Inc.)

Partnership Representative. The Members Manager shall take all reasonable actions to avoid the application to designate a partnership representative of the Company (the “Partnership Representative”), within the meaning of the centralized partnership audit provisions of sections 6221 through 6241 Section 6223(a) of the Code, as amended by the Bipartisan Budget Act of 2015. IfRevised Partnership Audit Procedures, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative well as for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Companyany state, and no other individual has been appointed as the Partnership Representativelocal, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. non-U.S. tax law. (i) The Partnership Representative shall be authorized notify the Members upon the receipt of a notice of final partnership adjustment, and required to represent shall make any relevant elections taking into account the Company with all examinations best interests of the Company’s affairs by tax authorities, including resulting administrative current Members and judicial proceedingsformer Members to comply with the Revised Partnership Audit Procedures. The Partnership Representative shall have all of the sole authority to (1) sign consents, enter into settlement rights and other agreements with such authorities with respect to any such examinations or proceedings and powers of a partnership representative as set forth in the Revised Partnership Audit Procedures. (ii) If the Company pays any imputed adjustment amount under Code Section 6225, as amended by the Revised Partnership Audit Procedures, the Manager shall allocate the amount of the payment among the Members (including any former Members) for the “reviewed year” to expend which such liability relates in a manner that reflects the current or former Members’ respective interests in the Company for that reviewed year. Such apportionment of liability shall also take into account the extent to which the Company’s funds for professional services incurred in connection therewith. In imputed underpayment was modified by adjustments under Section 6225(c) of the event Code (to the extent approved by the IRS) and attributable to (x) a particular Member’s tax classification, ​ tax rates, tax attributes, the character of tax items to which the adjustment relates, and similar factors, or (y) the Member’s filing of an adjustment resulting in an underpayment of tax, amended return for the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the Member’s taxable year that was audited personally bear any tax, interest, addition includes the end of the Company’s reviewed year and payment of required tax liability in a manner that complies with Section 6225(c)(2) of the Code. Each Member (or former Member) for the reviewed year hereby agrees to taxpay such amount to the Company, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay amount so contributed to the Company an shall not be treated as a Capital Contribution. Any amount not paid under the preceding sentence by a Member (or former Member) at the time requested by the Manager shall accrue interest at a rate equal to the lower of the fifteen percent (15%) per annum, compounded monthly, or the maximum rate of interest permitted by applicable law until paid, and such Person’s proportionate share of Member (or former Member) shall also be liable to the Company for any damages resulting from a delay in making such liability, as determined payment beyond the date such payment is requested by the Manager. To the extent that any Member fails to make any contribution required pursuant to this paragraph, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty amounts shall be specially allocated applied to and reduce the next distributions or any other monetary payments otherwise payable to the Member under this Agreement. (iii) The Members agree to cooperate in good faith, including by timely providing information, making elections and filing amended returns and paying any tax due with such Persons in such proportions. The amended returns, each as reasonably requested by the Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the CompanyRepresentative. The Members agree to cooperate file all U.S. federal, state, and local tax returns on a basis consistent with the Partnership Representative and to do or refrain from doing any or all things reasonably required returns filed by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by Company and the Partnership Representative terms of this Agreement. (iv) The provisions contained in carrying out its obligations hereunder this Section 12.4(a) shall be allocated to and charged to survive the Company as an expense dissolution of the Company for which Company, the Partnership Representative shall be reimbursedwithdrawal of any Member or the transfer of any Member’s interest in the Company.

Appears in 1 contract

Samples: Limited Liability Company Operating Agreement (Trinity Place Holdings Inc.)

Partnership Representative. The Members shall take all reasonable actions With respect to avoid the application to the Company of the centralized partnership audit U.S. federal (and comparable provisions of sections 6221 through 6241 state and local) income tax matters concerning tax years of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member unless and until the Manager designates otherwise, the Manager, will be the Company’s designated “partnership representative” within the meaning of Code Section 6223 (the “Tax Representative”) with sole authority to act on behalf of the Company for purposes of Subchapter C of Chapter 63 of the Code and any comparable provisions of state or local income tax laws. Initially, the Manager will be the Tax Representative and Kxxxxx XxXxxxx will be the “designated individual” within the meaning of Treasury Regulations Section 301.6223-1(b)(3). Each Member agrees that, upon request of the Tax Representative, such Member shall provide such information, execute such instrument and take such other actions as may be necessary or another appointed individual reasonably requested (as determined in good faith by the Tax Representative) to allow the Company (or Tax Representative, acting on behalf of the Company pursuant to this Section 9.3) to comply with any applicable tax reporting and/or withholding obligations, prepare for and participate in any tax proceedings, timely make any tax elections, and otherwise undertake actions relating to tax matters of the Company (including, to the extent applicable, actions to ensure compliance with the provisions of Section 6226 of the Code so that any “partnership adjustments” are taken into account by the Members rather than the Company). Each Member shall act use its best efforts to provide the Tax Representative with such information and execute such instruments as may be needed under the Partnership 2018 Audit Rules or otherwise reasonably requested by the Tax Representative in connection with the 2018 Audit Rules (including, for the purposes avoidance of IRS Code section 6221 through 6241doubt, in connection with making any election thereunder). In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership The Tax Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members reimbursed by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with for all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense costs and expenses reasonably incurred in connection with any such proceeding and shall be indemnified by the Company (solely out of Company assets) with respect to any action brought against such Tax Representative in connection with the settlement of any such proceeding. Expenses incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Tax Representative shall be reimbursedborne by the Company. Such expenses shall include, without limitation, fees of attorneys and other tax professionals, accountants, appraisers and experts, filing fees and reasonable out-of-pocket costs and expenses.

Appears in 1 contract

Samples: Company Agreement (Vernafund CF LLC)

Partnership Representative. The Members Tax Compliance Person shall take all reasonable actions to avoid act as the application to “partnership representative” of Topco within the Company meaning of Section 6223(a) of the centralized partnership audit provisions of sections 6221 through 6241 of the CodeIRC, as amended by the U.S. Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member The partnership representative shall have all of the Manager or another appointed individual shall act as the Partnership Representative rights, duties, powers and obligations provided for the purposes of IRS Code section in Sections 6221 through 6241. In the event the member 6231 of the Manager is no longer a Member IRC, as amended by the U.S. Bipartisan Budget Act of 2015. Notwithstanding the foregoing, Rainbow Capital, in its sole discretion, may designate another person to replace the CompanyTax Compliance Person as “partnership representative”, and no other individual has been appointed as the Partnership Representativesuch person shall have all such rights, duties, powers and obligations. The partnership representative shall promptly notify Rainbow Capital, the Partnership Representative shall be Tax Compliance Person (if it is not the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to servepartnership representative at that time) and, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend taxable period during which the Company’s funds for professional services incurred in connection therewith. In the event Coty Shareholder Group held an Equity Percentage of an adjustment resulting in an underpayment of taxat least 15%, the Partnership Representative Coty Parent of any notices that it receives related to a U.S. tax proceedings, and shall duly and timely elect under section 6226 inform such persons of the IRS Code that each Person who was a Member during status of such tax proceedings. Notwithstanding the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reasonforegoing, the Company is liable for a taxpartnership representative shall be subject to the control of the Bidco Board and shall not settle or otherwise compromise any issue in any examination, interestaudit or other proceeding with any Taxation Authority without first obtaining approval of the Bidco Board. The partnership representative shall determine whether any Imputed Underpayment Amount can be reduced pursuant to Sections 6225(c)(2)(B), addition (3), (4) or (5) of the IRC and any similar provisions of state or local laws. Each Shareholder hereby agrees to taxcooperate to provide any information or take such other actions as may be reasonably requested by the partnership representative in order to make such determination. Notwithstanding the foregoing, the partnership representative shall not require any Shareholder to file an amended Tax Return. A Shareholder’s obligation to comply with this Clause 9.1(f) shall survive the transfer, assignment or penalty as a result liquidation of such an audit, each Person who was a member during the taxable year that was audited Shareholder’s interest in Topco. The partnership representative shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined receive no compensation for its services. All third party costs and expenses incurred by the Manager, based on the amount each partnership representative in performing its duties as such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative including legal and to do or refrain from doing accounting fees and any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder expenses) shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedborne by Topco.

Appears in 1 contract

Samples: Shareholders' Agreement (Coty Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to the Company must designate itself as its own “partnership representative” for purposes of the centralized partnership audit Partnership Audit Rules and any comparable provisions of sections 6221 state or local income tax laws (the “Partnership Representative”). Each Member and the Board must take such actions as are necessary to perfect such designation. (b) The Company must appoint an individual who meets the requirements of Treasury Regulations Section 301.6223-1(b)(2) as the sole individual through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as whom the Partnership Representative will act for all purposes under the purposes Partnership Audit Rules and any comparable provisions of IRS Code section 6221 through 6241state or local income tax laws (the “Designated Individual”), and each Member (and the Board) must take such actions as are necessary to perfect such designation. In The Board may replace the event the member Designated Individual in accordance with applicable laws, rules, and regulations. Without approval of the Manager Board, no Person may take any action to cause the Company to elect into the Partnership Audit Rules where such rules would not otherwise be mandatory. The initial Designated Individual is no longer Bxxxx Xxxxxx. (c) The Company will have all of the rights, powers, obligations and duties of a Member “partnership representative” and the Designated Individual will have all of the rights, powers, obligations and duties of a “designated individual,” each as set forth in the CompanyPartnership Audit Rules. Notwithstanding the previous sentence, the Designated Individual must cause the Company to act at, and no other individual has been appointed as the Partnership Representativeonly at, the Partnership Representative shall be direction of the Majority Interest owner Board. The Designated Individual is, to the fullest extent permitted by law, absolved from amongst all liability for any and all consequences to any current or former Member resulting from any action that the Members. If Designated Individual causes the Majority Member is unable Company to take at the direction of the Board. (d) The Company must indemnify and reimburse the Designated Individual for all reasonable expenses, including legal and accounting fees, claims, liabilities, losses and damages incurred in connection with any administrative or unwilling judicial proceeding with respect to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests tax liability of the Members. The Partnership Representative shall payment of such expenses must be authorized made before any distributions are made to the Members under this Agreement and required before any discretionary reserves are set aside by the Board. (e) Each Member must take all actions that the Board informs it are reasonably necessary to represent the Company with all examinations effect a decision of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities Board with respect to the Partnership Audit Rules, including without limitation (i) providing any information reasonably requested in connection with any tax audit or related proceeding (which information may be freely disclosed to the Internal Revenue Service or other relevant taxing authorities), (ii) paying all liabilities attributable to such examinations Member as the result of an election under Code Section 6226, (iii) filing any amended returns that the Board determines to be necessary or proceedings appropriate to reduce an imputed underpayment under Code Section 6225(c) and/or (iv) paying all liabilities associated with such an amended return. The costs and expenses incurred by a Member in connection with the preceding sentence (other than the Designated Individual in its capacity as such) will not be treated as Company expenses and will not be reimbursed by the Company. (f) If any tax audit results in the imposition of a tax liability on the Company itself, the Board is authorized to allocate the economic burden of that liability (including interest and penalties) among the Members (including both current and former Members) based upon their interests in the Company for the “Reviewed Year” (as defined in Section 6225(d)(1) of the Code. If requested in writing by the Board, each Member must pay to the Company the amount allocated to it under the preceding sentence within ten (10) Business Days of notice thereof. Such payment (i) may, at the Board’s discretion, be made by withholding distributions that would otherwise be paid to a Member, and (ii) will not be treated as a Capital Contribution for purposes of determining a Member’s Unreturned Capital or any right to expend distributions hereunder. (g) Notwithstanding any other provision of this Agreement to the contrary, each Member agrees that its obligations to comply with this Section 10.7.2(g) will survive any transfer of its Membership Interest and the dissolution of the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an auditAccordingly, each Person who was that ceases to be a member during the taxable year that was audited shall pay to Member will, notwithstanding such divestiture, reimburse and indemnify the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall against any liability that would be specially allocated to such Persons in such proportions. The Partnership Representative shall have Person under Section 10.7.2(f) if the final decision-making authority with respect to all federal income tax matters involving Person were a Member at the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense time of the Company for which the Partnership Representative shall be reimburseddetermination.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Vinco Ventures, Inc.)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Managing Member with the initial Partnership Representative being RocketCo. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Managing Member and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push-out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members based upon their Percentage Interests in the Company for the reviewed year. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by Applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 6.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 6.01(c) shall be allocated implemented through adjustments to and charged distributions otherwise payable to such Member as determined in accordance with Section 5.03; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Xxxxxx, then such payment shall reduce any offset to distribution or required capital contribution of such Member or former Member. Any amount withheld from distributions pursuant to this Section 6.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 6.01(c) shall survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s interest.

Appears in 1 contract

Samples: Operating Agreement (Rocket Companies, Inc.)

Partnership Representative. The Members Manager shall take all reasonable actions designate a Person to avoid act as the application to “partnership representative” for purposes of Section 6223 of the Code and any analogous provision of state, local, or foreign law for a taxable year of the Company to which such analogous provision applies (the “Partnership Representative”). If applicable, the Partnership Representative shall designate the “designated individual” (as such term is defined under Treasury Regulations Section 301.6223-1(b)(3)) in the manner prescribed by the Treasury Regulations. The Partnership Representative shall have all of the centralized partnership audit provisions of sections rights, duties, powers, and obligations provided for in Sections 6221 through 6241 of the Code with respect to the Company, including all decisions regarding elections under Section 6221(b) or Section 6226 of the Code. If (a) the Company becomes liable for any taxes, interest or penalties under Section 6225 of the Code, or under any analogous provision of state, local, or foreign law and (b) the amount of such tax liability that is allocable to a Person that was a Member of the Company for all or a portion of the taxable year to which such liability relates (a “Reviewed Year Member”), including any associated interest and penalties, as amended reasonably determined by the Manager, taking into account (i) the Reviewed Year Member’s share of the Net Income or Net Losses, of specially allocated, individual items of Company income, gain, deduction, and loss, and of credits to which such adjustment and imputed underpayment relate and (ii) other relevant information (for example, the Reviewed Year Member’s obligation (if any) to indemnify, defend, or hold harmless the Company or any other Member for some or all of such adjustment and imputed underpayment (and any associated interest and penalties) or the Reviewed Year Member’s obligations and liabilities (if any) arising from or related to the Reviewed Year Member’s representations, warranties, and covenants pursuant to this Agreement), exceeds the amount of Company funds that otherwise would be then-distributable to the Reviewed Year Member, notwithstanding any other provision of this Agreement, the Reviewed Year Member will contribute to the Company, at least three Business Days prior to the due date of the Company’s payment, the amount of funds required (i.e., the full amount of the payment with respect to the Reviewed Year Member if no Company funds would be then-distributable to the Reviewed Year Member or the amount by which the amount of the payment with respect to the Reviewed Year Member exceeds the amount of Company funds that otherwise would be then distributable to the Reviewed Year Member) to allow the Company to satisfy fully and timely its obligation to pay such taxes, interest, or penalties under Section 6225 of the Code, or under any analogous provision of state, local, or foreign law. Any such amount paid by a Reviewed Year Member to the Company shall not be treated as a Capital Contribution for purposes of any provision herein that affects distributions to the Members. In addition, each of the Partnership Representative and the Manager is authorized to withhold from distributions, if any, then otherwise to be made to one or more of the Reviewed Year Members and to pay to any such taxes, interest, or penalties under Section 6225 of the Code, or under any analogous provision of state, local, or foreign law. Any amount withheld or paid with respect to a Reviewed Year Member pursuant to this SECTION 9.5 shall be treated as an amount distributed to such Reviewed Year Member for all purposes under this Agreement. Each Reviewed Year Member shall furnish the Partnership Representative with such information as the Partnership Representative may reasonably request to permit the Partnership Representative to perform the Partnership Representative’s duties under the Code. The Partnership Representative shall not be liable to the Company, any Member, or any Reviewed Year Member for any act or omission of the Partnership Representative that was in good faith and in the belief that such act or omission was in, or was not opposed to, the best interests of the Company. The Partnership Representative shall be indemnified by the Company in respect of any claim based upon such act or omission, provided that such act or omission does not violate this Agreement and does not constitute gross negligence, fraud, or a willful violation of law. The Partnership Representative shall inform all Members and Reviewed Year Members of all material tax matters of which the Partnership Representative becomes informed by giving the Members and the Reviewed Year Members notice thereof within 30 days after the Partnership Representative’s becoming so informed. The Company shall bear all expenses and costs of the Partnership Representative except to the extent that the Partnership Representative incurred the expense or cost in connection with an act or omission by the Partnership Representative that violates this Agreement or constitutes gross negligence, fraud, or a willful violation of law. The Company’s initial Partnership Representative shall be the initial Manager elected in accordance with this Agreement. If provisions of state or local law analogous to Sections 6221 through 6231 of the Code (as in effect before amendment by the Bipartisan Budget Act of 2015. If, however, such provisions are found to 2015 (P.L. 114-74)) apply to a taxable year of the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be serve as the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities matters partner” with respect to such taxable year, and the provisions of this SECTION 9.5 shall, to the extent applicable, apply to any audit governed by such examinations provisions of state or proceedings local law. This SECTION 9.5 shall survive (i) the termination, liquidation, or dissolution of the Company and (ii) to expend the transfer, redemption, or liquidation of a Member’s interest in the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Operating Agreement (Norhart Invest LLC)

Partnership Representative. (a) The Members shall take all reasonable actions to avoid the application to “Partnership Representative” (as such term is defined under Partnership Audit Provisions) of the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended shall be selected by the Bipartisan Budget Act of 2015Manager with the initial Partnership Representative being the Corporation. IfThe Partnership Representative may retain, howeverat the Company’s expense, such provisions are found to apply to the Companyoutside counsel, a member of the Manager or another appointed individual shall act accountants and other professional consultants as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member it may reasonably deem necessary in the Company, and no other individual has been appointed course of fulfilling its obligations as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative is authorized to take, and shall be authorized and required to represent determine in its sole discretion whether or not the Company with will take, such actions and execute and file all examinations statements and forms on behalf of the Company’s affairs Company that are approved by tax authorities, including resulting administrative the Manager and judicial proceedings. The Partnership Representative shall have are permitted or required by the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event applicable provisions of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect Audit Provisions (including a “push- out” election under section Section 6226 of the IRS Code that each Person who was a or any analogous election under state or local tax Law). Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative and to use commercially reasonable efforts to do or refrain from doing any or all things reasonably required requested by the Partnership Representative (including paying any and all resulting taxes, additions to conduct tax, penalties and interest in a timely fashion) in connection with any examination of the Company’s affairs by any federal, state, or local tax authorities, including resulting administrative and judicial proceedings. (b) In the event that the Partnership Representative has not caused the Company to make a “push-out” election pursuant to Section 6226 of the Partnership Audit Provisions, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Partnership Audit Provisions) or partnership adjustment that does not give rise to an imputed underpayment shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such proceedings. Any reasonable direct out-of-pocket expense incurred manner as may be necessary (as determined by the Partnership Representative in carrying out its obligations hereunder good faith) so that, to the maximum extent possible, the tax and economic consequences of the imputed underpayment or other partnership adjustment and any associated interest and penalties (any such amount, an “Imputed Underpayment Amount”) are borne by the Members in the same proportion that such omitted taxable income or overreported loss giving rise to the Imputed Underpayment Amount would have been allocated pursuant to this Agreement. Imputed Underpayment Amounts also shall include any imputed underpayment within the meaning of Section 6225 of the Partnership Audit Provisions paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts, whether by applicable Law or contract. (c) Each Member agrees to indemnify and hold harmless the Company from and against any liability with respect to such Member’s share of any tax deficiency paid or payable by the Company that is allocable to the Member as determined in accordance with Section 9.01(b) with respect to an audited or reviewed taxable year for which such Member was a partner in the Company. Any obligation of a Member pursuant to this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, be allocated implemented through adjustments to and charged Distributions otherwise payable to such Member as determined in accordance with Section 4.01; provided, however, that, at the written request of the Partnership Representative, each Member or former Member may be required to contribute to the Company such Member’s Imputed Underpayment Amount imposed on and paid by the Company; provided, further, that if a Member or former Member individually directly pays, pursuant to the Partnership Audit Provisions, any such Imputed Underpayment Amount, then such payment shall reduce any offset to Distribution or required capital contribution of such Member or former Member. Any amount withheld from Distributions pursuant to this Section 9.01(c) shall be treated as an expense amount distributed to such Member or former Member for all purposes under this Agreement. For the avoidance of doubt, the obligations of a Member set forth in this Section 9.01(c) shall, to the fullest extent permitted by applicable Law, survive the withdrawal of a Member from the Company for which the Partnership Representative shall be reimbursedor any Transfer of a Member’s Company Interest.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Figdor Drew)

Partnership Representative. The Members shall take all reasonable actions to avoid (a) PubCo is hereby designated as the application to “partnership representative” as that term is defined in Revised Partnership Audit Provisions for taxable years of the Company of beginning with the centralized partnership audit provisions of sections 6221 through 6241 of taxable year including the CodeEffective Date. In addition, as amended the OpCo Board is hereby authorized to designate or remove any other Person selected by the Bipartisan Budget Act of 2015OpCo Board as the Partnership Representative. IfFor each Fiscal Year in which the Partnership Representative is an entity, however, such provisions are found to apply to the Company, a member of the Manager or another appointed Company shall appoint an individual shall act as identified by the Partnership Representative for such Fiscal Year to act on its behalf (the purposes “Designated Individual”) in accordance with the applicable regulations or analogous provisions of IRS Code section 6221 through 6241state or local Law. In the event the member of the Manager is no longer a Each Member in the Companyhereby expressly consents to such designations and agrees to take, and no that the OpCo Board is authorized to take (or cause the Company to take), such other individual has been appointed actions as the Partnership Representativemay be necessary or advisable pursuant to Treasury Regulations or other Internal Revenue Service or Treasury guidance or state or local Law to cause such designations or evidence such Member’s consent to such designations. (b) Subject to this Section 5.08, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to act on behalf of the Company in connection with, make all relevant decisions regarding application of, and to exercise the rights and powers provided for in the Revised Partnership Audit Provisions, including making any elections under the Revised Partnership Audit Provisions or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any action, audit or examination before the IRS or any other tax authority (1) sign consentseach, enter into settlement an “Audit”), and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s Company funds for professional services and other expenses reasonably incurred in connection therewith. In . (c) Without limiting the event of an adjustment resulting in an underpayment of taxforegoing, the Partnership Representative shall duly and timely elect under section 6226 give prompt written notice to the Continuing Member Representative of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear commencement of any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, Audit of the Company is liable for or any of its Subsidiaries the resolution of which would reasonably be expected to have a tax, interest, addition disproportionate (compared to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based PubCo) and material adverse effect on the amount each such Person should have borne Continuing Members (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportionsa “Specified Audit”). The Partnership Representative shall have (i) keep the Continuing Member Representative reasonably informed of the material developments and status of any such Specified Audit, (ii) permit the Continuing Member Representative (or its designee) to participate (including using separate counsel), in each case at the Continuing Members’ sole cost and expense, in any such Specified Audit, and (iii) promptly notify the Continuing Member Representative of receipt of a notice of a final decision-making authority partnership adjustment (or equivalent under applicable Laws) or a final decision of a court or IRS Independent Office of Appeals panel (or equivalent body under applicable Laws) with respect to all federal income tax matters involving the Companysuch Specified Audit. The Members agree to cooperate Partnership Representative or the Company shall promptly provide the Continuing Member Representative with copies of all material correspondence between the Partnership Representative or the Company (as applicable) and any governmental entity in connection with such Specified Audit and shall give the Continuing Member Representative a reasonable opportunity to do review and comment on any material correspondence, submission (including settlement or refrain from doing compromise offers) or filing in connection with any or all things reasonably required by such Specified Audit. Additionally, the Partnership Representative shall not (and the Company shall not (and shall not authorize the Partnership Representative to)) settle, compromise or abandon any Specified Audit in a manner that would reasonably be expected to conduct such proceedingshave a disproportionate (compared to PubCo) and material adverse effect on the Continuing Members without the Requisite Continuing Members’ prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Any reasonable direct out-of-pocket expense The Partnership Representative shall obtain the prior written consent of the Requisite Continuing Members (which consent shall not be unreasonably withheld, delayed or conditioned) before (i) making an election under Section 6226(a) of the Code (or any analogous provision of state or local Law) or (ii) taking any material action under the Revised Partnership Audit Provisions that would reasonably be expected to have a disproportionate (compared to PubCo) and material adverse effect on the Continuing Members, in the case of clauses (i) and (ii); provided that, no consent from the Requisite Continuing Members is required in order to make an election under Section 6226(a) of the Code with respect to taxable periods that began on or before the Effective Time. (d) All expenses incurred by the Partnership Representative or Designated Individual in carrying out connection with its obligations hereunder duties as partnership representative or designated individual, as applicable, shall be allocated to and charged to the Company as an expense expenses of the Company (including, for which the avoidance of doubt, any costs and expenses incurred in connection with any claims asserted against the Partnership Representative or Designated Individual, as applicable, except to the extent the Partnership Representative or Designated Individual is determined to have performed its duties in the manner described in the final sentence of this Section 5.08(d)), and the Company shall reimburse and indemnify the Partnership Representative or Designated Individual, as applicable, for all such expenses and costs. Nothing herein shall be reimbursedconstrued to restrict the Partnership Representative or Designated Individual from engaging lawyers, accountants, tax advisers, or other professional advisers or experts to assist the Partnership Representative or Designated Individual in discharging its duties hereunder. Neither the Partnership Representative nor Designated Individual shall be liable to the Company, any Member or any Affiliate thereof for any costs or losses to any Persons, any diminution in value or any liability whatsoever arising as a result of the performance of its duties pursuant to this Section 5.08 absent (i) willful breach of any provision of this Section 5.08 or (ii) bad faith, fraud, gross negligence or willful misconduct on the part of the Partnership Representative or Designated Individual, as applicable. (e) The Company, the Partnership Representative, and the Members expressly agree to be bound by the terms of Section 10.03

Appears in 1 contract

Samples: Agreement and Plan of Merger (Highland Transcend Partners I Corp.)

Partnership Representative. The Members shall take all reasonable actions With respect to avoid periods governed by the application to Code as amended by the Company Bi-partisan Budget Act of 2015, Iridium or a person designated (and approved by the centralized partnership audit provisions Board of sections 6221 through 6241 Directors) by it is hereby designated the “Partnership Representative” (as defined in Section 6223 of the Code, as amended by the Bipartisan Bi-partisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager 2015 (“BBA Amendments”)) and is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company (at the Company’s expense), subject to the direction and supervision of the Board of Directors and the restrictions set forth in this Section 9.3.2, in connection with all examinations of the Company’s affairs by tax authorities, including any resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement act on behalf of the Company for purposes of the BBA Amendments and other agreements with such authorities with respect to any such examinations comparable provisions of state or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewithlocal income tax laws. In the event The Board of an adjustment resulting in an underpayment of tax, the Directors may appoint a new Partnership Representative shall duly at any time in its sole discretion. Each Member and timely elect under section 6226 of the IRS Code former Member that each Person who was a Member held any Interest during the taxable year that was audited personally bear any tax, interest, addition reviewed Fiscal Year (an “Interested Member”) agrees to tax, and penalty resulting from such adjustments and, if for any reason, cooperate reasonably with the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required requested by the Partnership Representative Company with respect to the conduct of such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the The Partnership Representative shall inform the Interested Members within 30 days of the initiation of an audit, examination or other proceeding by a tax authority and shall keep the Interested Members reasonably informed of the progress of any examinations, audits or other proceedings, shall provide the Interested Members with information on a full and timely basis, and shall not settle any examination or controversy concerning the Company’s affairs by tax authorities that could reasonably be reimbursedexpected to materially and adversely affect any Interested Member without the written consent of such Interested Member, which consent shall not be unreasonably withheld or delayed.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Iridium Communications Inc.)

Partnership Representative. The Members officer serving in the capacity of chief financial officer, chief accounting officer or treasurer of the Company, or such other Person so designated by the Manager, shall take all reasonable actions to avoid be the application to "partnership representative" of the Company within the meaning of Section 6223(a) of the centralized partnership audit provisions of sections 6221 through 6241 of Code (the Code, "Partnership Representative") as amended by included in the Bipartisan Budget Act of 2015. If, howeveras such, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company (at the Company's expense) in connection with all examinations of the Company’s 's affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s 's funds for professional services and reasonably incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative Company and to do or refrain from doing any or all things reasonably required requested by the Company with respect to the conduct of such proceedings. Notwithstanding the authority granted to the Partnership Representative hereunder, all non- ministerial decisions regarding tax elections (except where the election is expressly authorized to be made by the Manager hereby), audit, tax litigation, settlement and other tax matters shall be subject to the prior written approval of the Manager. For example, but not by way of limitation, the Partnership Representative shall not take any position or action with the IRS without the prior written approval of the Manager, including but not limited to, any decision (i) to enter into any settlement or other agreement with the IRS or any tax other authority that purports to bind any Member other than the Partnership Representative; (ii) to file a request for an administrative adjustment with the IRS or file a petition for judicial review with respect to any such request, or (iii) to extend the statute of limitations for assessing or computing any tax liability against the Company (or the amount or character of any Company tax items. The Partnership Representative shall furnish to the Members a copy of all notices or other written communications received by the Partnership Representative or the Company from the IRS or any other taxing authorities promptly after receipt of such communication. The Partnership Representative shall notify the Members of all communications it has had with the IRS or any other taxing authorities and shall keep the Members informed of all matters which may come to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred its attention in its capacity as Partnership Representative by giving the Members written notice thereof within five days after the Partnership Representative in carrying out its obligations hereunder shall becomes informed of any such matter or within such shorter period as may be allocated required by the appropriate statutory or regulatory provisions. In the event of any Company-level proceeding instituted by the IRS pursuant to and charged to the Company as an expense Sections 6221 through 6233 of the Company for which Code, the Partnership Representative shall consult with the Manager regarding the nature and content of all action and defense to be reimbursedtaken by the Company in response to such proceeding. The Partnership Representative also shall consult with the Manager regarding the nature and content of any proceeding pursuant to Sections 6221 through 6233 of the Code instituted by or on behalf of the Company (including the decision to institute proceedings, whether administrative or judicial, and whether in response to a previous IRS proceeding against the Company or otherwise). Notwithstanding anything herein to the contrary, it is agreed that to the extent available, the Partnership Representative shall cause the Company to make, and the Company shall make, the election contemplated by Section 622l(b). In addition, the Manager shall have the right, in its sole discretion, to make an election to change the tax treatment of the Company, including to elect to have the Company taxed as a corporation.

Appears in 1 contract

Samples: Limited Liability Company Agreement

Partnership Representative. The Members shall take all reasonable actions to avoid the application to partnership representative of the Company of the centralized pursuant to Code Section 6223(a) shall be Laredo, provided that such partnership audit provisions of sections 6221 through 6241 of the Code, as amended representative may be removed and replaced by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member action of the Manager to the extent permitted by the provisions of the Code or another appointed individual shall act Treasury Regulations issued thereunder. (Any person who is designated as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager partnership representative is no longer a Member in the Company, and no other individual has been appointed referred to herein as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members”). The Partnership Representative shall be is authorized to take such actions and required to represent execute and file all statements and forms on behalf of the Company with all examinations which may be permitted or required by the applicable provisions of the Company’s affairs by tax authoritiesInternal Revenue Code or Treasury Regulations issued thereunder, including resulting administrative and judicial proceedingsprovided that the Partnership Representative may file any suit only with the approval of the Manager. The Partnership Representative shall have the sole authority to act on behalf of the Company under Subchapter C of Chapter 63 of Subtitle F of the Code (1relating to IRS partnership audit proceedings) sign consentsand in any Tax proceedings brought by other taxing authorities, enter into settlement and other agreements the Company and all Members shall be bound by the actions taken by the Partnership Representative in such capacity. The Partnership Representative shall be reimbursed by the Company for all expenses incurred in connection with such authorities with respect to any such all examinations or proceedings and (ii) to expend of the Company’s affairs by Tax authorities, including resulting proceedings, and is authorized to expend Company funds for professional services incurred in connection and costs associated therewith. In The Partnership Representative shall keep the event Members informed as to the status of an adjustment resulting in an underpayment any audit of taxthe Company’s Tax affairs. Without first obtaining the approval of the Manager, the Partnership Representative shall duly and timely elect under section 6226 not, with respect to Company Tax matters: (a) enter into a settlement agreement with respect to any Tax matter, or (b) enter into an agreement extending the statute of limitations. If an audit of any of the IRS Company’s Tax returns shall occur, the Partnership Representative shall not settle or otherwise compromise assertions of the auditing agent which may be adverse to any Member as compared to the position taken on the Company’s Tax returns without the prior written consent of each such affected Member. If an audit results in an imputed underpayment by the Company as determined under Code that each Person who was a Member during Section 6225, the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from Partnership Representative may make the election under Code Section 6226(a) within forty-five (45) days after the date of the notice of final partnership adjustment in the manner provided by the Internal Revenue Service. If such adjustments and, if for any reasonan election is made, the Company is shall furnish to each Member of the Company for the year under audit a statement reflecting the Member’s share of the adjusted items as determined in the notice of final partnership adjustment, and each such Member shall take such adjustment into account as required under Code Section 6226(b) and shall be liable for a taxany related interest, interestpenalty, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustmentadditional amount. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty Company shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with indemnify the Partnership Representative from and to do or refrain from doing against any or all things reasonably required by claim, liability and expense (including attorneys’ fees) it may incur in connection with its duties as the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedRepresentative.

Appears in 1 contract

Samples: Limited Liability Company Operating Agreement (Laredo Oil, Inc.)

Partnership Representative. The Members (i) With respect to tax years beginning after December 31, 2017, the Board shall take all reasonable actions designate a partnership representative (any person who is designated as the partnership representative is referred to avoid herein as the application to “Partnership Representative”) and comply with the Company provisions under this Section 5.11(b) in lieu of the centralized partnership audit tax matters partner provisions of sections 6221 through 6241 of the Codein Section 5.11(a), except as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241may otherwise be required under applicable law. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representativethis regard, the Partnership Representative of the Company pursuant to Section 6223(a) of the Internal Revenue Code shall be any Member or other person with a substantial presence in the Majority Interest owner from amongst United States designated by the MembersBoard in the manner prescribed by the Internal Revenue Service. If The Partnership Representative is authorized to take such actions and to execute and file all statements and forms on behalf of the Majority Member is unable Company which may be permitted or unwilling to serverequired by the applicable provisions of the Internal Revenue Code or Treasury Regulations issued thereunder, provided that the Partnership Representative may file suit only with the approval of a majority of the Board. The Partnership Representative shall have the sole authority to act on behalf of the Company under Subchapter C of Section 63 of the Internal Revenue Code (relating to IRS partnership audit proceedings) and in any tax proceedings brought by other taxing authorities, and the Company and all Members shall be appointed from amongst bound by the remaining Members actions taken by a Majority of Interests of the MembersPartnership Representative in such capacity. The Partnership Representative shall be authorized and required to represent reimbursed by the Company for all expenses incurred in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative Proceedings, and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) is authorized to expend the Company’s Company funds for professional services incurred in connection and costs associated therewith. In the event of . (ii) If an adjustment resulting audit results in an imputed underpayment by the Company as determined under Section 6225 of taxthe Internal Revenue Code, the Partnership Representative shall duly and timely elect under section 6226 Representative, with the approval of a majority of the IRS Board, may make the election under Section 6226(a) of the Internal Revenue Code that each Person who was a Member during within 45 days after the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from date of the notice of final partnership adjustment in the manner provided by the Internal Revenue Service. If such adjustments and, if for any reasonan election is made, the Company is shall furnish to each Member of the Company for the year under audit a statement reflecting the Member’s share of the adjusted items as determined in the notice of final partnership adjustment, and each such Member shall take such adjustment into account as required under Section 6226(b) of the Internal Revenue Code and shall be liable for a taxany related interest, interestpenalty, addition to tax, or penalty additional amount. (iii) If an audit results in an imputed underpayment that gives rise to Company Level Taxes, the payment by the Company of Company Level Taxes shall, consistent with the Partnership Tax Audit Rules, be treated as the payment of a Company obligation and shall be treated as paid with respect to a Member to the extent the deduction with respect to such payment is allocated to such Member pursuant to Section 4.2(j), and such payment shall not be treated as a result withholding from distributions, allocations, or portions thereof with respect to a Member. To the extent that there is a payment of Company Level Taxes relating to a Member, the amount of such Company Level Taxes shall give rise to an audit, each Person who was interest-bearing obligation of such Member to make a member during the taxable year that was audited shall pay capital contribution to the Company an amount equal to such Person’s proportionate share of such liability, as determined (a “Tax Contribution Obligation”). If requested by the ManagerBoard, based on a Member shall promptly contribute the amount each such Person should have borne (computed at the rate used of its Tax Contribution Obligation to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree To the extent a Member does not promptly contribute the amount of its Tax Contribution Obligation to cooperate with the Company, the Company shall offset such amount (plus interest accruing at the applicable underpayment rate for such period, as specified in Section 6621 of the Internal Revenue Code) against distributions to which such Member would otherwise be subsequently entitled until the Member’s Tax Contribution Obligation (including any interest accrued thereon) has been satisfied in full. For the avoidance of doubt, the interest on any Tax Contribution Obligation paid by a Member to the Company (whether directly or by offset) under this Section 5.11(b) shall be taxable income to the Company. To the extent, and at the time(s), that a Member makes a payment to satisfy such Member’s Tax Contribution Obligation (including any accrued but unpaid interest thereon), such payment shall be applied first to any accrued but unpaid interest owed by such Member, and any remaining portion shall satisfy such Member’s Tax Contribution Obligation and such remaining portion shall increase such Member’s Capital Account but shall not reduce the amount that a Member is otherwise obligated to contribute to the Company. Amounts recovered by the Company through any offset against distributions pursuant to this Section 5.11(b) shall be applied first to any accrued but unpaid interest owed by such Member, and thereafter offset the amount of such Member’s Tax Contribution Obligation, and such Member’s Capital Account shall not be reduced to the extent such offset was against the amount of such Member’s Tax Contribution Obligation. Each Member hereby unconditionally and irrevocably grants to the Company a security interest in such Member’s Units to secure such Member’s Tax Contribution Obligation. Each Member shall take such actions as the Company may request in order to perfect or enforce the security interest created hereunder. Each Member hereby agrees to indemnify and hold harmless the Company, the other Members, the Partnership Representative and the Board from and against any liability (including any liability for Company Level Taxes) with respect to do income attributable to or refrain from doing distributions or other payments to such Member. For the avoidance of doubt, any Person who ceases to be a Member shall be deemed to be a Member for purposes of this Section 5.11(b), and the obligations of a Member pursuant to this Section 5.11(b) shall survive indefinitely with respect to any taxes withheld or all things reasonably required paid by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged Company that relate to the period during which such Person was actually a Member, regardless of whether such taxes are assessed, withheld or otherwise paid during such period. Notwithstanding the foregoing, the Board may choose to not recover an amount of Company as an expense Level Taxes or other taxes withheld or paid with respect to a Member under this Section 5.11(b) if the Board determines, in its reasonable discretion, that such a decision would be in the best interests of the Company for which Members (e.g., where the Partnership Representative shall cost of recovering the amount of taxes withheld or paid with respect to such Member is not justified in light of the amount that may be reimbursedrecovered from such Member).

Appears in 1 contract

Samples: Limited Liability Company Agreement (Boaz Energy II, LLC)

Partnership Representative. The Members Board shall take all reasonable actions appoint an individual to avoid be the application to the Company of the centralized partnership audit provisions of sections 6221 through 6241 of the Coderepresentative” as provided in Code Section 6223(a), as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to 2015 (the Company, a member of “BBA”) (the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members”). The Partnership Representative shall be is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax taxing authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to act on behalf of the Company in any such examinations and any resulting administrative or proceedings judicial proceedings, and shall have sole discretion to determine whether the Company (either on its own behalf or on behalf of the Members) will contest or continue to contest any tax deficiencies assessed or proposed to be assessed by any taxing authority. To the extent permitted by applicable law and regulations, the Partnership Representative on behalf of the Company may annually elect out of the BBA for tax years beginning on or after January 1, 2018 pursuant to Code Section 6221(b), as amended by the BBA. For any year in which applicable law and regulations do not permit the Company to elect out of the BBA, then within forty-five (45) days of any notice of final partnership adjustment, the Partnership Representative may cause the Company to elect the alternative procedure under Code Section 6226, as amended by the BBA, and furnish to the Internal Revenue Service and each Member (including former Members) during the year or years to which the notice of final partnership adjustment relates a statement of the Member’s share of any adjustment set forth in the notice of final partnership adjustment. Each Member agrees that (i) such Member shall not treat any Company item inconsistently on such Member’s federal, state, foreign, or other income tax return with the treatment of the item on the Company’s return and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting the Company elects the alternative procedure under Code Section 6226 as amended by the BBA, such Member shall file amended returns if necessary and pay any tax due with respect to the tax year in an underpayment of taxquestion. Any deficiency for taxes imposed on or allocable to any Member or former Member (including penalties, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition additions to taxtax or interest imposed with respect to such taxes, and penalty resulting any taxes imposed pursuant to Code Section 6226, as amended by the BBA) shall be paid by such Member, and if required to be paid (and actually paid) by the Company (whether under the BBA or otherwise), will be recoverable from such adjustments and, if for any reason, Member; the Board may require a former Member to indemnify the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment its allocable portion of such tax. The obligations of each Member or former Member under this Section 3 shall survive the transfer or redemption by such Member of such Member’s Units, interest, addition to taxthe termination of this Agreement, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving dissolution of the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursed.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Benefit Holding, Inc.)

Partnership Representative. The Members shall take all reasonable actions to avoid the application Pursuant to the Company Revised Partnership Audit Rules: (i) the Managers shall designate the “partnership representative” of the centralized partnership audit provisions Partnership within the meaning of sections 6221 through 6241 Section 6223(a) of the Code, as amended by and, if the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Companypartnership representative is not an individual, a member designated individual to act on its behalf (together, the “Partnership Representative”) and for the corresponding provision of any state or local statute, (ii) each of the Manager Members hereby consents to such designation and agrees to take any such further action as may be required by regulations or another appointed individual shall act as otherwise to effectuate such designation, (iii) the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by any tax authorities, including resulting judicial and administrative proceedings, and judicial proceedings. The to expend Company funds for the services and costs associated therewith, (iv) the decisions of the Partnership Representative shall be final and binding as to all Members, (v) the Partnership Representative shall have the sole authority to (1make elections set forth in the Revised Partnership Audit Rules, including, but not limited to, the election set forth in Section 6221(b) sign consentsof the Code to opt out of the Revised Partnership Audit Rules, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings make the election under Section 6226(a) of the Code if the Company is not eligible to opt out of the Revised Partnership Audit Rules, and (iivi) any imputed underpayment imposed on the Company pursuant to expend Section 6225 of the Code (and any related interest, penalties or other additions to tax) that the Company reasonably determines is attributable to one or more Members or assignees shall be promptly paid by such Members or assignees to the Company (pro rata in proportion to their respective shares of such underpayment as reasonably determined by the Managers) within fifteen (15) days following the Company’s funds request for professional services incurred payment. Notwithstanding the foregoing and for the avoidance of doubt, any failure to pay such amount shall result in connection therewitha subsequent reduction in distributions otherwise payable to such Member and shall be treated as paid by the Company on behalf of such Member for all purposes. In “Revised Partnership Audit Rules” means the event provisions of an adjustment resulting in an underpayment Subchapter C of taxSubtitle A, Chapter 63 of the Code, as amended by P.L. 114-74, the Partnership Representative shall duly and timely elect under section 6226 Bipartisan Budget Act of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear 2015 (together with any taxsubsequent amendments thereto, interest, addition to taxTreasury Regulations promulgated thereunder, and penalty resulting from such adjustments andpublished administrative interpretations thereof) or any similar procedures established by a state, if for any reason, the Company is liable for a tax, interest, addition to tax, local or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decisionnon-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedU.S. taxing authority.

Appears in 1 contract

Samples: Limited Liability Company Agreement (BOSTON OMAHA Corp)

Partnership Representative. (i) Nassau Machines, Inc. is hereby designated as the initial “partnership representative” of the Company under Section 6223(a) of the Partnership Tax Audit Rules and as the “tax matters partner” pursuant to Section 6231(a)(7) of the Code prior to its amendment by the Partnership Tax Audit Rules for purposes of state and local jurisdictions that have not conformed to the Partnership Tax Audit Rules (in each case, the “Partnership Representative”). Each of the Members hereby consents to such designation and agrees to take any such further action as may be required by Treasury Regulations or otherwise to effectuate such designation. The Members Partnership Representative is authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by any tax authorities, including resulting judicial and administrative proceedings, and to expend Company funds for professional services and costs associated therewith. Each Member agrees that such Member will not independently act with respect to tax audits or tax litigation of the Company, unless previously authorized to do so in writing by the Partnership Representative, which authorization may be withheld by the Partnership Representative in its sole and absolute discretion. The Partnership Representative shall take have sole discretion to determine whether the Company (either on its own behalf or on behalf of the Members) will contest or continue to contest any tax deficiencies assessed or proposed to be assessed by any taxing authority. The Partnership Representative shall give notice to each Member of any item or event with respect to taxes, including a proposed administrative or judicial proceeding involving taxes, and any proposed deficiency or similar notice of intention to assess taxes, and permit any potentially affected Member the opportunity to participate in such tax event or proceedings at such Member’s expense. Promptly following the written request of the Partnership Representative, the Company shall, to the fullest extent permitted by applicable law, reimburse and indemnify the Partnership Representative for all reasonable actions to avoid expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the application Partnership Representative in such capacity in connection with any administrative or judicial proceeding with respect to the Company tax liability of the centralized Members. (ii) The provisions of this Section 7.4 shall survive the termination of the Company or the termination of any Member’s Units and shall remain binding on the Members for as long a period of time as is necessary to resolve with the Internal Revenue Service any and all matters regarding the U.S. federal income taxation of the Company or the Members. Each Member shall be liable for and shall indemnify the Company against, and shall promptly upon demand by the Partnership Representative, pay to the Company, such Member’s share (as determined by the Partnership Representative) of any imputed underpayment of tax and any interest and penalties relating thereto imposed on the Company as a result of any partnership adjustment or other proceeding with substantially similar effect under the Partnership Tax Audit Rules. For avoidance of doubt, the immediately preceding sentence applies only to United States federal income taxes and related interest and penalties imposed under the Partnership Tax Audit Rules, and state and local income taxes and related interest and penalties imposed under laws or regulations that conform to or operate in substantially the same manner as the Partnership Tax Audit Rules with respect to an imputed underpayment and related interest and penalties. The liability and obligation of a Member under this Section 7.4(a)(ii) shall survive any sale, exchange, liquidation, retirement or other disposition of such Member’s Units. (iii) The Partnership Representative shall have the authority to make any elections or take any actions under the partnership audit provisions of sections 6221 through 6241 procedures enacted under Section 1101 of the CodeBipartisan Budget Act of 2015 (including any election under Section 6226 of the Code (under the Partnership Tax Audit Rules)), and each Member shall cooperate to the extent necessary in the making of any such election or the taking of any such action. If an election under Section 6226 of the Code (as amended by the Bipartisan Budget Act of 2015. If) is made, however, such provisions are found the Company shall furnish to apply to each Member for the Company, year under audit a member statement of the Manager or another appointed individual Member’s share of any adjustment set forth in the notice of final partnership adjustment, and each Member shall act take such adjustment into account as required under Section 6226(b) of the Code (under the Partnership Tax Audit Rules). (iv) The Partnership Representative may resign at any time. If the Person serving as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, ceases to be the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for Managing Member shall appoint a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The new Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedRepresentative.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Hiro Systems PBC)

Partnership Representative. The Members shall take all reasonable actions to avoid Board may appoint and replace a Partnership Representative (within the application to the Company meaning of Section 6223 of the centralized partnership audit provisions of sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015. If, however, such provisions are found to apply to the Company, a member of the Manager Code and any Treasury Regulations or another appointed individual shall act as other administrative or judicial pronouncements promulgated thereunder) and authorize the Partnership Representative to take any and all actions determined by the Board and permissible under Code § 6223 and Treasury Regulations thereunder; provided that for all tax years beginning after December 31, 2017, the purposes of IRS Code section 6221 through 6241. In Members shall continue to have all the event rights that they had during all tax years ending on or before December 31, 2017 pursuant to the member of the Manager is no longer a Member in the CompanySection 6.3, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling take any necessary action to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the ensure such rights to such Members. The Partnership Representative shall be authorized give prompt written notice to each other Member of any and required to represent all notices it receives from the Company with all examinations of Internal Revenue Service concerning the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have take no action without the sole authority to (1) sign consentsauthorization of the Board, enter into settlement and other agreements with than such authorities with respect to any such examinations or proceedings and (ii) to expend action as may be required by law. Without the Company’s funds for professional services incurred in connection therewith. In consent of the event of an adjustment resulting in an underpayment of taxClass A Unitholders, the Partnership Representative shall duly and timely elect under section 6226 not extend the statute of limitations, file a request for administrative adjustment, file suit concerning any federal, state or local tax refund or deficiency relating to any Company administrative adjustment or enter into any settlement agreement relating to any Company item of income, gain, loss, deduction or credit for any fiscal year of the IRS Company, or take any other material action relating to any federal, state or local tax proceeding involving the Company. In the event that the Board determines that the foregoing provisions are no longer applicable to the Company, either due to a change of controlling law or the enactment of applicable Treasury Regulations, the Board is authorized to take any reasonable actions as may be required concerning tax matters of the Company not otherwise addressed in Section 6.3 and this Section 6.4. If an audit results in an imputed underpayment by the Company as determined under Section 6225 of the Code, the Partnership Representative, unless otherwise directed by the Board, may make the election under Section 6226(a) of the Code that each Person who was a Member during within 45 days after the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from date of the notice of final partnership adjustment in the manner provided by the Internal Revenue Service. If such adjustments and, if for any reasonan election is made, the Company is shall furnish to each Member of the Company for the year under audit a statement reflecting the Member’s share of the adjusted items as determined in the notice of final partnership adjustment, and each such Member shall take such adjustment into account as required under Section 6226(b) of the Code and shall be liable for a taxany related interest, interestpenalty, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree to cooperate with the Partnership Representative and to do or refrain from doing any or all things reasonably required by the Partnership Representative to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred by the Partnership Representative in carrying out its obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Partnership Representative shall be reimbursedadditional amount.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Par Pacific Holdings, Inc.)

Partnership Representative. The Members officer serving in the capacity of chief financial officer, chief accounting officer or treasurer of the Company, or such other Person so designated by the Manager, shall take all reasonable actions to avoid be the application to “partnership representative” of the Company within the meaning of Section 6223(a) of the centralized partnership audit provisions of sections 6221 through 6241 of Code (the Code, “Partnership Representative”) as amended by included in the Bipartisan Budget Act of 2015. If, howeveras such, such provisions are found to apply to the Company, a member of the Manager or another appointed individual shall act as the Partnership Representative for the purposes of IRS Code section 6221 through 6241. In the event the member of the Manager is no longer a Member in the Company, and no other individual has been appointed as the Partnership Representative, the Partnership Representative shall be the Majority Interest owner from amongst the Members. If the Majority Member is unable or unwilling to serve, the Partnership Representative shall be appointed from amongst the remaining Members by a Majority of Interests of the Members. The Partnership Representative shall be authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall have the sole authority to (1) sign consents, enter into settlement and other agreements with such authorities with respect to any such examinations or proceedings and (ii) to expend the Company’s funds for professional services and reasonably incurred in connection therewith. In the event of an adjustment resulting in an underpayment of tax, the Partnership Representative shall duly and timely elect under section 6226 of the IRS Code that each Person who was a Each Member during the taxable year that was audited personally bear any tax, interest, addition to tax, and penalty resulting from such adjustments and, if for any reason, the Company is liable for a tax, interest, addition to tax, or penalty as a result of such an audit, each Person who was a member during the taxable year that was audited shall pay to the Company an amount equal to such Person’s proportionate share of such liability, as determined by the Manager, based on the amount each such Person should have borne (computed at the rate used to compute the Company’s liability) had the Company’s tax return for such taxable year reflected the audit adjustment. The expenses for the Company’s payment of such tax, interest, addition to tax, or penalty shall be specially allocated to such Persons in such proportions. The Partnership Representative shall have the final decision-making authority with respect to all federal income tax matters involving the Company. The Members agree agrees to cooperate with the Partnership Representative Company and to do or refrain from doing any or all things reasonably required requested by the Company with respect to the conduct of such proceedings. Notwithstanding the authority granted to the Partnership Representative hereunder, all non-ministerial decisions regarding tax elections (except where the election is expressly authorized to be made by the Manager hereby), audit, tax litigation, settlement and other tax matters shall be subject to the prior written approval of the Manager. For example, but not by way of limitation, the Partnership Representative shall not take any position or action with the IRS without the prior written approval of the Manager, including but not limited to, any decision (i) to enter into any settlement or other agreement with the IRS or any tax other authority that purports to bind any Member other than the Partnership Representative; (ii) to file a request for an administrative adjustment with the IRS or file a petition for judicial review with respect to any such request, or (iii) to extend the statute of limitations for assessing or computing any tax liability against the Company (or the amount or character of any Company tax items. The Partnership Representative shall furnish to the Members a copy of all notices or other written communications received by the Partnership Representative or the Company from the IRS or any other taxing authorities promptly after receipt of such communication. The Partnership Representative shall notify the Members of all communications it has had with the IRS or any other taxing authorities and shall keep the Members informed of all matters which may come to conduct such proceedings. Any reasonable direct out-of-pocket expense incurred its attention in its capacity as Partnership Representative by giving the Members written notice thereof within five days after the Partnership Representative in carrying out its obligations hereunder shall becomes informed of any such matter or within such shorter period as may be allocated required by the appropriate statutory or regulatory provisions. In the event of any Company-level proceeding instituted by the IRS pursuant to and charged to the Company as an expense Sections 6221 through 6233 of the Company for which Code, the Partnership Representative shall consult with the Manager regarding the nature and content of all action and defense to be reimbursedtaken by the Company in response to such proceeding. The Partnership Representative also shall consult with the Manager regarding the nature and content of any proceeding pursuant to Sections 6221 through 6233 of the Code instituted by or on behalf of the Company (including the decision to institute proceedings, whether administrative or judicial, and whether in response to a previous IRS proceeding against the Company or otherwise). Notwithstanding anything herein to the contrary, it is agreed that to the extent available, the Partnership Representative shall cause the Company to make, and the Company shall make, the election contemplated by Section 6221(b). In addition, the Manager shall have the right, in its sole discretion, to make an election to change the tax treatment of the Company, including to elect to have the Company taxed as a corporation.

Appears in 1 contract

Samples: Operating Agreement (Viroment Capital, LLC)

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