Partnership Representative. (a) PubCo shall act as the Partnership Representative and in such role shall have the authority to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4. (b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Stagwell Inc), Limited Liability Company Agreement (Stagwell Inc), Transaction Agreement (MDC Partners Inc)
Partnership Representative. (a) PubCo The Members hereby agree that: (i) the Manager (or an individual designated by the Manager) will be designated the initial “partnership representative” within the meaning of Section 6223(a) of the Code (the “Partnership Representative”) and the Manager shall be authorized to take any actions necessary under Treasury Regulations or other guidance to cause such person to be designated as such; (ii) if an entity is designated as Partnership Representative, the Manager shall simultaneously designate an individual who will act as for the entity Partnership Representative; (iii) the Partnership Representative may be removed and replaced at any time by the Manager; (iv) the Company and each Member agree that they shall be bound by the actions taken by the Partnership Representative, as described in such role shall have the authority to appoint the “designated individual” Section 6223(b) of the Code; (v) the Members hereby consent to the election set forth in Section 6226(a) of the Code and agree to take any action, and furnish the Partnership Representative with any information necessary, to give effect to such election if the Manager decides to make such election; (vi) any imputed underpayment of tax imposed on the Company pursuant to Section 6232 of the Code (and any related interest, penalties or other additions to tax) that the Manager reasonably determines is attributable to one or more Members (including any former Member) in the Manager’s sole discretion; and (vii) the Partnership Representative will be considered indemnified and the provisions of Section 5.6 shall apply to the Partnership Representative. The Partnership Representative shall be authorized to take any of the foregoing actions (or any similar actions), to the extent necessary to allow the Company to comply with the partnership audit provisions of the Bipartisan Budget Act of 2015.
(b) Regarding the potential obligation of a former Member under this paragraph, the following shall apply: (i) each Member agrees that notwithstanding any other provision in this Agreement if it is no longer a Member it shall nevertheless be obligated for any responsibilities under Section 6.5, as if it were a Member prior to withdrawal from the Company and/or transfer of its interest; and (ii) as applicable, the Manager will not be required to consent to the transfer of interest of any Member unless the transferee receiving such interest agrees that in the event the transferor of such interest does not fulfill its obligation under the preceding clause (i) within 20 business days following written demand by the Manager, such transferee shall be jointly and severally liable with such transferor for such obligation and the Manager may thereafter treat the transferee as the relevant Member for purposes of this Subsection. The Partnership Representative will provide prompt written notification to each Member in the event of any audit of the Company by the United States Internal Revenue Service and provide all information reasonably requested by any Member regarding such audit and associated proceedings. The provisions of this Section 6.5 will not apply to any taxable year of the Company for which the Company has made a valid election out of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections Section 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code.
Appears in 3 contracts
Samples: Limited Liability Company Operating Agreement (LK Secured Lending Reg a Fund, LLC), Limited Liability Company Operating Agreement (LK Secured Lending Reg a Fund, LLC), Limited Liability Company Operating Agreement (LK Secured Lending Reg a Fund, LLC)
Partnership Representative. The Manager shall appoint a Member (awhich may be itself) PubCo shall act as the Partnership Representative, subject to replacement by the Manager. The Partnership Representative and in such role shall have all of the rights, authority and power, and shall be subject to all of the obligations, of a Partnership Representative to the extent provided in the Partnership Tax Audit Rules (or other applicable Law), subject to the provisions of this Agreement. For any period in which the Partnership Representative is not a natural person, the Partnership Representative shall appoint a natural person that is an officer or employee of the Company or PubCo as the “designated individual” (within the meaning of Treasury Regulations Section 301.6223-1(b)(3)) to act in accordance with the rights and duties under this Section 8.03, and such designated individual shall be subject to replacement by the Partnership Representative in accordance with Treasury Regulations Section 301.6223-1. The Partnership Representative will give timely notice to the Members of any material audit, administrative or judicial proceeding relating to taxes of the Company, no later than 30 days after receiving written notice of such audit or proceeding. The Partnership for purposes Representative will keep the Members reasonably informed concerning the progress and status of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto any such audit or proceeding. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company provide written notice to the extent the Company is required Members concerning its intent to make any payment for taxeselection or decision, interest, additions and shall permit the Members to tax or penalties or review and suggest comments with respect to a Member’s share of any adjustment to income, gain, loss, deduction such election or credit as determined in decision. Without limiting the reasonable good faith discretion generality of the Partnership Representative. To the fullest extent permitted by applicable Lawforegoing, a Member’s obligations under this Section 9.4 (i) no Member shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survivebe required to file an amended U.S. federal income tax return, as described in Code Section 6225(c)(2)(A), or pay any tax due and provide information to each Memberthe Internal Revenue Service as described in Code Section 6225(c)(2)(B), without the approval of such Member’s withdrawal from the Company Member (not to be unreasonably withheld, conditioned or termination of the Member’s status as a Member. Any reasonabledelayed), documented cost or expense incurred by and (ii) the Partnership Representative shall not cause or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall permit any settlement or compromise of any material tax audit or proceeding that could reasonably be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company itemshave a disproportionate (compared to other Members, and keep each of but without regard to any disproportionate impact caused by disparate Common Unit Sharing Percentages), adverse impact on the Members advised of all material developments Series A Investor (solely with respect to any proposed adjustments taxable period (or portion thereof) prior to the IPO or during which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30the Series A Investor held Units representing more than 5% of the Common Units Aggregate Unit Sharing Percentage) or a Specified Member without the approval of the Company, Stagwell shall have the right Series A Investor or such Specified Member (not to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed conditioned or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codedelayed).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Nextracker Inc.), Limited Liability Company Agreement (Nextracker Inc.)
Partnership Representative. (a) PubCo shall act the Manager is hxxxxx designated as the Partnership Representative and in such role shall have the authority to appoint the “designated individualpartnership representative” of the Partnership Company for purposes of Subchapter C of Chapter 63 and within the meaning of the Code New Partnership Audit Rules (the “Partnership Representative”). The Company and the Treasury Regulations relating thereto each Member shall take such actions as may be required to effect such designation. 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 responsible for making all decisionssubject to replacement by the Partnership Representative in accordance with the Code and Treasury Regulations. To the extent that the Partnership Representative does not make an election to apply the alternative method provided by Section 6226 of the Code (or any analogous provision of state or local tax law), filing all elections the Partnership Representative shall have the authority and taking all other actionsdiscretion to determine the portion of any imputed underpayment (within the meaning of the New Partnership Audit Rules) allocable to each Member. Each Member agrees to provide any information reasonably requested by the Partnership Representative in order to determine whether any imputed underpayment (within the meaning of the 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 each the case related of ordinary income, to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Codea C corporation or, in its sole discretionthe 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 treated as paid with respect to such Member. Each Member shall indemnify and reimburse promptly contribute the Company 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 is required shall offset such amount against distributions to make any payment for taxes, interest, additions which such Member would otherwise be subsequently entitled pursuant to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination 4.02 and winding-up of the Company 4.03 (and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 amounts shall be borne by deemed distributed pursuant to those provisions). Each Member hereby agrees to indemnify and hold harmless the Company. The Members agree to reasonably cooperate with , the Companyother Members, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
Manager from and against any liability (b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments including any liability for partnership-level taxes imposed with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expenseNew Partnership Audit Rules) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% income attributable to or distributions or other payment to such Member. Each Member agrees, upon the request of the Common Units Partnership Representative, to file an amended United States federal income tax return for the taxable year which includes the end of the Companytaxable year to which an imputed underpayment relates and to pay on a timely basis any and all resulting taxes, the Partnership Representative may not settle any additions to tax, penalties and interest due in connection with such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) tax return in accordance with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the CodeCode 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. (a) PubCo The Members hereby agree that: (i) the Manager (or an individual designated by the Manager) will be designated the initial “partnership representative” within the meaning of Section 6223(a) of the Code (“Partnership Representative”), and the Manager shall be authorized to take any actions necessary under Treasury Regulations, or other guidance, to cause such person to be designated as such; (ii) if an entity is designated as Partnership Representative, the Manager shall simultaneously designate an individual who will act as for the entity Partnership Representative; (iii) the Partnership Representative may be removed and replaced at any time, by the Manager; (iv) the Company and/or Series and each Member agree that they shall be bound by the actions taken by the Partnership Representative, as described in such role shall have the authority to appoint the “designated individual” Section 6223(b) of the Code; (v) the Members hereby consent to the election set forth in Section 6226(a) of the Code, and agree to take any action and furnish the Partnership for purposes Representative with any information necessary to give effect to such election, if the Manager decides to make such election; (vi) any imputed underpayment of Subchapter C of Chapter 63 tax imposed on the Company and/or Series pursuant to Section 6232 of the Code (and any related interest, penalties, or other additions to tax) that the Manager reasonably determines is attributable to one or more Members (including any former Member) in the Manager’s sole discretion; and (vii) the Partnership Representative will be considered indemnified, and the Treasury Regulations relating thereto provisions of Section 5.6 shall apply to the Partnership Representative. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related authorized to take any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company foregoing actions (or any similar actions) to the extent necessary, to allow the Company is required and/or Series to make any payment for taxes, interest, additions to tax or penalties or comply with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion partnership audit provisions of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up Bipartisan Budget Act of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.42015.
(b) The Partnership Representative Regarding the potential obligation of a former Member under this paragraph, the following shall promptly deliver apply: (i) each Member agrees that, notwithstanding any other provision in this Agreement, if it is no longer a Member, it shall nevertheless be obligated for any responsibilities under Section 6.5, as if it were a Member prior to each of the other Members a copy of all notices, communications, reports and writings received withdrawal from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any and/or Series and/or transfer of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code.interest; and
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement (Concreit Series LLC), Limited Liability Company Operating Agreement (Concreit Series LLC)
Partnership Representative. (a) PubCo Pursuant to the Partnership Audit Provisions, the Manager shall be designated and may, on behalf of the Company, at any time, and without further notice to or consent from any Member, act as the “partnership representative” of the Company (within the meaning given to such term in Section 6223 of the Code) (the “Partnership Representative”) for purposes of the Code. The Partnership Representative shall have the right and obligation to take all actions authorized and required, respectively, by the Code for the Partnership Representative and is authorized and required to represent the Company (at the Company’s expense) in such role connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. The Partnership Representative is hereby authorized, and shall have the authority discretion based upon the advice of counsel, to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 make all elections under Section 6226 of the Code and the Treasury Regulations relating thereto thereunder. Each Member agrees to cooperate with the Company and the Partnership Representative and to do or refrain from doing any or all things reasonably requested by the Company or the Partnership Representative with respect to the conduct of such proceedings, including the making of, and compliance with, any elections with respect thereto. The Partnership Representative shall be responsible for making all decisionskeep Members reasonably informed regarding any material income tax proceedings, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its their own choosing (at their sole expense) in any such tax proceedings. In respect of any administrative or judicial proceeding with respect proceedings to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditionedextent permitted by applicable law. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter Cthe Partnership Audit Provisions.
(b) In the event the Company incurs any liability for taxes, Chapter 63interest or penalties:
(i) The Partnership Representative may, Subtitle F or if such amounts are material, shall, cause the Members (including any former Member) to whom such liability relates, as determined by the Partnership Representative, in its sole good faith discretion and after consulting with the Company’s and the affected Member’s tax advisors, to pay, and each such Member hereby agrees to pay, such amount to the Company, and such amount shall not be treated as a Capital Contribution; and
(ii) Any amount not paid by a Member (or former Member) within ten (10) days following the receipt of the Coderequest to pay delivered by the Partnership Representative shall be treated for purposes of this Agreement as withholding payment governed by Section 6.3(b) hereof.
(iii) The obligations of each Member (or former Member) under this Section 13.3 and Section 6.3(b) shall survive the transfer or redemption by such Member of its Units and the termination of this Agreement or the dissolution of the Company.
Appears in 2 contracts
Samples: Operating Agreement (GreenSky, Inc.), Operating Agreement (GreenSky, Inc.)
Partnership Representative. The Manager shall select the Company’s representative who must have a substantial presence in the United States to serve as the Company representative within the meaning of Code Section 6223 (“Partnership Representative”).
(a) PubCo shall act as the Partnership Representative and in such role shall have the authority to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisionsperform his, her, or its duties under the direction and guidance of the Manager. The Manager shall determine whether to make any available election under Code Section 6221 through 6241, including Code Section 6221(b) and Code Section 6226. Notwithstanding anything else contained herein, the Partnership Representative shall not take any material action without the prior approval of the Manager, including, but not limited to, extending the statute of limitations, filing all elections and taking all other actionsa request for administrative adjustment, in each case filing a suit related to any auditCompany tax refund or deficiency, examinationor entering into any settlement agreement related to items of income, litigation gain, loss or deduction of the Company with the Internal Revenue Service (or similar state or local governmental authority).
(b) Each Member agrees that such Member shall not treat any Company item inconsistently on such Member’s federal, state, foreign, or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 income tax return with the treatment of the Code, in its sole discretionitem on the Company’s return. Each Any deficiency for taxes imposed on any Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interestor former Member (including penalties, additions to tax or penalties or interest imposed with respect to a such taxes, and any taxes imposed pursuant to Code Section 6226) shall be paid by such Member, or if paid by the Company shall be recoverable from such Member. Each Member agrees to cooperate in taking such actions as may be required to cause any election made by the Company to be effective.
(c) The provisions of this Section 13.5 shall survive the termination of the Company, this Agreement, and the termination of any Member’s share of any adjustment to income, gain, loss, deduction or credit as determined interest in the reasonable good faith discretion Company.
(d) The Partnership Representative shall keep the Manager and all Members informed of all notices from government taxing authorities that may come to the attention of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 The Company shall survive the dissolution, liquidation, termination pay and windingbe responsible for all reasonable third-up of the Company party costs and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense expenses incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 performing those duties. Each Member shall be borne responsible for any costs incurred by the Company. The Members agree Member with respect to reasonably cooperate with any tax audit or tax related administrative or judicial proceeding against any Member, even though it relates to the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(be) The Partnership Representative shall promptly deliver endeavor to each provide Schedule K-1 and any necessary tax documents to Members no later than March 31st of the other year following the taxable year, but it is likely that Members a copy of all notices, communications, reports and writings received from the IRS relating will need to or reasonably expected to result in file an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at extension on their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codereturns.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Partnership Representative. A. The Managing Member is hereby designated to serve as the “partnership representative” with respect to the Company, as provided in Section 6223(a) of the Partnership Audit Rules (a) PubCo shall act as the “Partnership Representative”). For each taxable year in which the Partnership Representative and in such role is an entity, the Company shall have the authority to appoint the “designated individual” identified by the Partnership Representative to act on behalf of the Partnership for purposes of Subchapter C of Chapter 63 of Representative (the Code “Designated Individual”) in accordance with the applicable Treasury Regulations. Each Member expressly consents to such designations and agrees that it will execute, acknowledge, deliver, file and record at the Treasury Regulations relating thereto . appropriate public offices such documents as may be necessary or appropriate to evidence such consent.
B. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related have the sole authority to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 act on behalf of the Code, Company in its sole discretion. Each Member shall indemnify connection with and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion all relevant decisions regarding application of the Partnership Representative. To the fullest extent permitted by applicable LawAudit Rules, a Member’s obligations including, but not limited to, any elections under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative Audit Rules or any decisions to settle, compromise, challenge, litigate or otherwise alter the “designated individual” defense of any proceeding before the IRS. Notwithstanding the foregoing sentence, for so long as the Initial Non-Managing Members hold more than a ten percent (10%) Percentage Interest in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative shall, prior to making a final decision as to whether to cause the Company to make a Pass-Through Election or to pay an Imputed Underpayment Amount, confer with the Initial Non-Managing Members and consider in good faith any reasonable objections that the “designated individual” as necessary Initial Non-Managing Members may have to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company’s payment of an Imputed Underpayment Amount in lieu of making a Pass-Through Election (for example, Stagwell shall any difficulties that the Initial Non-Managing Members may have the right to observe and participate through representatives of as a practical matter in collecting its own choosing (at their sole expense) in any tax proceedings. In respect share of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member Imputed Underpayment Amount under Subchapter C, Chapter 63, Subtitle F of the CodeSection 10.3.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.)
Partnership Representative. For any year for which Company qualifies to opt out of the centralized partnership audit regime under § 6221 of the Code, the Company shall do so on its yearly tax return. For any year for which it is not eligible to opt out under § 6221, the remaining provisions of this section shall apply. The Members hereby appoint Mxxxxxx X. Xxxxxx as the partnership representative of the Company pursuant to § 6223(a) of the Code (a) PubCo shall act as the “Partnership Representative”). The relationship of the Partnership Representative to the Members shall be that of a fiduciary, and the Partnership Representative shall have a fiduciary obligation to perform his duties in such role shall have manner as will serve the authority to appoint the “designated individual” best interests of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto Members. The Partnership Representative shall receive no fees or compensation for its services in such capacity but shall be responsible reimbursed by the Company for making all decisionsreasonable costs and expenses incurred by him in discharging his duties and responsibilities as Partnership Representative. The Partnership Representative shall provide prompt notice to the Members of any inquiry or other communication received from the IRS regarding the tax treatment of the Company or Members, filing all elections and taking all other actions, in each case related to any of the commencement of an IRS audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of options concerning certain elections available under the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make confirmation certain elections have been made, when any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred assessment has been made by the Partnership Representative or the “designated individual” in connection IRS, when any and all meetings with the roles IRS shall occur, and responsibilities described in this Section 9.4 shall be borne by information on options available to appeal the Companyassessment. The In the event an IRS assessment is made affecting the Members agree to reasonably cooperate with or the Company, the Partnership Representative Members each hereby agree to file an amended return under § 6225 of the Code to reflect the tax as it should have been for the year that is being audited. Each Member acknowledges that, notwithstanding the transfer or liquidation of all or any portion of its Interest in the Company, it may remain liable for taxes with respect to its allocable share of income and gain of the Company for the Company’s taxable years (or portions thereof) prior to such transfer or liquidation. The obligations of each Member or Former Member under this Section shall survive the transfer or redemption by such Member of its Interest and the “designated individual” as necessary to carry out the intent termination of this Section 9.4.
Agreement or the dissolution of the Company. To the extent that a portion of the taxes imposed under § 6225 relates to a former Member, the former Member shall indemnify the Company for its allocable portion of such tax (bincluding any penalties, additions to tax, additional amounts, and interest). Each Member acknowledges that, notwithstanding the transfer or liquidation of all or any portion of its Interest in the Company, it may remain liable for taxes with respect to its allocable share of income and gain of the Company for the Company’s taxable years (or portions thereof) prior to such transfer or liquidation. The Partnership Representative shall promptly deliver to each not, without consent of the Managers and a Majority in Interest, do any or all of the following: (a) engage attorneys, accountants, experts or other Members a copy of all notices, communications, reports and writings received from personnel; (b) send written correspondence to the IRS relating or file or authorizing filing on the Company’s behalf with any court without prior notice of and a reasonable opportunity to or reasonably expected to result in an adjustment of Company items, review and keep each comment upon any such document; (c) make a Push-Out Election under § 6226 of the Members advised of all material developments with respect to any proposed adjustments which come to its attentionCode; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% (d) file an administrative adjustment request under § 6227 of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing Code; (at their sole expensee) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) a settlement with the IRS; or (f) extend the statute of limitations with the IRS. The Partnership Representative must also consult regularly with the Managers concerning audit and litigation strategy. In the event of death, in each casedisability, without or resignation of Mxxxxxx X. Xxxxxx as Partnership Representative, Wxxxxxx Xxxxxx shall serve as successor Partnership Representative. In the prior written consent event of Stagwelldeath, which consent disability, or resignation of Wxxxxxx Xxxxxx as Partnership Representative, a successor Partnership Representative shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict selected by the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the CodeManagers.
Appears in 1 contract
Partnership Representative. (a) PubCo shall act as the Partnership Representative and in such role shall have the authority to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative Investor shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 Section 6223(a) of the Code (and for corresponding or similar provisions of applicable state or local tax law) and shall be entitled to designate another person to serve as the partnership representative. The Investor shall also designate the “designated individual” under the applicable Treasury regulations under the Code. The Members shall take any such actions required to institute the foregoing. Except as set forth herein, in its sole discretionthe partnership representative shall be entitled to exercise all rights, required, permitted or otherwise contemplated by Chapter 63, Subchapter C of the Code as amended by the Bipartisan Budget Act of 2015, provided that the partnership representative shall first obtain the approval of the Executive Committee prior to entering into any settlement of any audit by the Internal Revenue Service or making any elections, including an election under Section 6626 of the Code (a “Section 6226 Election”). Each Member If a Section 6226 Election is made, the partnership representative shall indemnify and reimburse the Company provide to the extent Members the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share Members’ respective shares of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion notice of the Partnership Representativefinal partnership adjustment. To the fullest extent permitted by applicable LawNotwithstanding anything contained herein, each Member (whether or not such Member remains a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up member of the Company in the adjustment year) agrees to indemnify the Company for its allocable share (as determined by the partnership representative in consultation with the Company Accountant), of any federal income tax liability (and any related interest or penalties) assessed against the Company (which payment shall survivenot constitute a Capital Contribution). At the election of the Executive Committee, as the Company shall be entitled to each Member, reduce distributions that would otherwise be made to a Member in part or full satisfaction of such Member’s withdrawal from allocable share of any such tax liability (and any related interest or penalties) assessed against the Company or termination Company. For purposes of the Memberpreceding sentence, any successor in interest of a Member (or such successor’s status as a Membersuccessor in interest (continuing for each successor)) shall be considered to be the Member that would otherwise have been subject to the reduction in distribution. Any reasonable, documented cost or expense incurred by All reasonable costs and expenses of the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 partnership representative shall be borne by the Company. The Members agree partnership representative shall use commercially reasonable efforts to reasonably cooperate keep the other Member informed regarding any material matter raised by or involving its interaction with the CompanyInternal Revenue Service and will use commercially reasonable efforts to consult with the other Member regarding material actions taken or to be taken in connection therewith. The provisions in this Agreement, including Article X, limiting the Partnership Representative liability of and providing indemnification for a Member shall be fully applicable to the Investor (or its designee) in its capacity as partnership representative. The covenants contained in this Section 6.04 will survive the Transfer of the Interest of any Member and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units termination of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Partnership Representative. (a) PubCo The Members acknowledge that Section 1101 of the Bipartisan Budget Act is applicable to the Company. Accordingly, (i) Pattern Member shall act as be designated the “Partnership Representative Representative” within the meaning of Code Section 6223 and in such role shall have the authority to appoint designate the “designated individual” of through whom it shall act in its capacity as Partnership Representative, (ii) the Partnership for purposes Representative will (or will cause the Company to) give notice to the other Members of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examinationadministrative or judicial proceedings, litigation meetings or conferences with the IRS or other tax-related proceeding, or otherwise related similar matters that come to its role as “partnership representative” pursuant to Sections 6221 through 6231 of attention, and (iii) in the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent event that the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to issued a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Companyfinal partnership adjustment, the Partnership Representative and will undertake the “designated individualpull-in” procedure contemplated by Code Section 6225(c)(2)(B) with respect to such adjustment, or if the “pull-in” procedure is not available, the Partnership Representative will make the “push-out” election contemplated by Code Section 6226(a) in a timely manner, provided that the “push-out” election is available to the Company and Members holding more than 50% of the Units have not directed otherwise. If the Partnership Representative undertakes the “pull-in” procedure or makes the “push-out” election, the Partnership Representative shall follow the procedures required in connection with such procedure or election to make inapplicable to the Company the requirement in Code Section 6225 that the Company pay any “imputed underpayment” as necessary to carry out the intent of this Section 9.4that term is used in such Section.
(b) The Partnership Representative shall promptly deliver is authorized to each take such actions and to execute and file all statements and forms and Tax returns on behalf of the Company which may be permitted or required by the applicable provisions of the Code or Treasury Regulations issued thereunder, provided that the Partnership Representative may file suit only with approval of Investor and, to the extent Pattern Member (or, if Pattern Member has Disposed of any of its Units, any of its successors or assigns) is not the Partnership Representative, Pattern Member (and, if Pattern Member has Disposed of any of its Units, each such successor or assign). The Partnership Representative shall act in a similar capacity under any applicable non-U.S., state or local tax law. The Partnership Representative will not cause the Company to be treated as other Members than a copy “partnership” for federal income tax purposes. All reasonable out-of-pocket expenses incurred by the Partnership Representative while acting in such capacity shall be paid or reimbursed by the Company. The Partnership Representative shall, in its discretion, make any and all elections applicable to the Company under the Code or state or local tax law. Notwithstanding the foregoing, the Partnership Representative shall (i) make an election under Code Section 754 to adjust the basis of all noticesthe Company’s property upon receipt of a written request from a Member and (ii) shall, communicationsto the extent permitted under applicable Law, reports adopt as the Company’s fiscal year the calendar year or, if different, PEGI’s fiscal year. Mtl#: 2837088.5 1557237.09-WASSR01A - MSW
(c) The Partnership Representative shall have the exclusive right and writings received from sole authority to act on behalf of the IRS Company under Subchapter C of Section 63 of the Code (relating to or reasonably expected to result IRS partnership audit proceedings) and in an adjustment of Company itemsany tax proceedings brought by other taxing authorities, and the Company and all Members shall be bound by the actions taken by the Partnership Representative in such capacity. The Partnership Representative shall keep each of the Members advised informed on a timely basis of all material developments with respect to any proposed adjustments which come to such proceeding and shall inform the Members of any material decision or actions it takes in its attention; provided, however, that so long capacity as Stagwell or Partnership Representative.
(d) In the event of any “imputed underpayment” within the meaning of its Permitted Transferees is a Member holding at least 30% Section 6225 of the Common Units Code paid by the Company as a result of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding an adjustment with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Companyany Company item, including any interest or penalties with respect to any such adjustment (collectively, an “Imputed Underpayment Amount”), the Partnership Representative shall use commercially reasonable efforts to allocate the burden of (or any decrease in Distributable Cash resulting from) any taxes, penalties or interest imposed on the Company pursuant to Code Sections 6225 and 6232 among the Members and former Members in a reasonable manner based on the status, actions, inactions or other attributes of each Member and taking into account whether such Member has filed an amended return for its taxable year that includes the end of the reviewed year of the Company and paid any tax due shown thereon in order to modify or reduce the amount of the Imputed Underpayment Amount under Section 6225(c)(2). Any amounts allocated to a Member pursuant to the preceding sentence will be treated as withholding tax that arises as a result of the status or other matters that are particular to a Member. If the Company becomes liable for any taxes, interest or penalties under Section 6225 of the Code (following a final determination of such liability by the relevant governmental authority), each Member that was a Member of the Company for the taxable year to which such liability relates shall indemnify 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, as reasonably determined by the Partnership Representative. Each Member acknowledges and agrees that (i) it may not settle any such administrative be required to provide the Partnership Representative with documents, information, assistance or judicial proceeding or enter into any agreement (including extending the period of limitations) cooperation in connection with the IRS, in each case, without requirements imposed on the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F Company pursuant to Sections 6221 through 6241 of the Code, together with any guidance issued thereunder, and (ii) if it fails to provide such documentation, information, assistance or cooperation (including as a result of a Member not being eligible to provide any requested documentation), any taxes, penalties or interest imposed on the Company as a result of such failure will be treated for all purposes of this Agreement (including Section 5.05) as amounts that are determined by reference to the status of a Member (or its beneficial owners).
(e) Each Member agrees that, in the case of any direct Disposition by such Member, such Member shall remain liable for any indemnification obligations set forth under Section 7.01(d) which could be owed by such Member in respect of the time periods preceding the effective date of the Disposition, unless the transferee of its Membership Interest expressly assumes its indemnification liability under Section 7.01(d) with respect to such preceding periods. Mtl#: 2837088.5 1557237.09-WASSR01A - MSW
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pattern Energy Group Inc.)
Partnership Representative. (ai) PubCo shall act The Managing Member is hereby designated as the Partnership Representative and in such role shall have the authority to appoint the “designated individualpartnership representative” of the Partnership Company for purposes of Subchapter C of Chapter 63 and within the meaning of the Code New Partnership Audit Rules (the “Partnership Representative”). The Company and the Treasury Regulations relating thereto each Member shall take such actions as may be required to effect such designation. 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 responsible for making all decisionssubject to replacement by the Partnership Representative in accordance with the Code and Treasury Regulations. To the extent that the Partnership Representative does not make an election to apply the alternative method provided by Section 6226 of the Code (or any analogous provision of state or local tax law), filing all elections the Partnership Representative shall have the authority and taking all other actionsdiscretion to determine the portion of any imputed underpayment (within the meaning of the New Partnership Audit Rules) allocable to each Member. Each Member agrees to provide any information reasonably requested by the Partnership Representative in order to determine whether any imputed underpayment (within the meaning of the 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 each the case related of ordinary income, to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Codea C corporation or, in its sole discretionthe 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 treated as paid with respect to such Member. Each Member shall indemnify and reimburse promptly contribute the Company amount of its allocable share of any partnership-level tax upon request by the Managing Member and, to the extent a Member does not contribute such amount within 15 days after demand for payment thereof, the Company is required shall offset such amount against distributions to make any payment for taxes, interest, additions which such Member would otherwise be subsequently entitled pursuant to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination 4.02 and winding-up of the Company 4.03 (and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 amounts shall be borne by deemed distributed pursuant to those provisions). Each Member hereby agrees to indemnify and hold harmless the Company. The Members agree to reasonably cooperate with , the Companyother Members, the Partnership Representative and the “designated individual” Managing Member 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).
(ii) Notwithstanding anything in this Agreement to the contrary,(x) the Partnership Representative, in its sole discretion, may, and/or may cause the Company to, make or take (or not make or take) any election or other action that the Partnership Representative and/or the Company is permitted or required to make or take (or not make or take) under the New Partnership Audit Rules; and (y) each Member shall timely make or take (and/or cause to be timely made and taken) any and all actions and payments, and each Member shall timely prepare and file (and/or shall cause to be timely prepared and filed) any and all of its tax returns, consistent with and in compliance with the New Partnership Audit Rules and/or otherwise as necessary the Partnership Representative shall determine to carry out be consistent with and in compliance with the intent New Partnership Audit Rules and which the Partnership directs a Member to make, take or do.
(iii) 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 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items8.03, and keep each the obligations of the Members advised of all material developments a Member pursuant to this Section 8.03 shall survive indefinitely with respect to any proposed adjustments which come taxes withheld or paid by the Company that relate to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods period during which Stagwell owned at least 30% such Person was actually a Member, regardless of the Common Units of the Companywhether such taxes are assessed, the Partnership Representative may not settle any withheld or otherwise paid during such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codeperiod.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Generation Income Properties, Inc.)
Partnership Representative. (ai) PubCo The Manager is hereby designated as the “partnership representative” fo the Company pursuant to Section 6223(a) of the Code (as amended by the Title XI of the Bipartisan Budget Act of 2015 (such Title XI, including the corresponding provisions of the Code impacted thereby, and any corresponding provisions of state or local income tax law, as the same may be amended from time to time, the “2015 Act”)) (the “Partnership Representative”), and to the extent authorized or permitted under applicable law, but subject to the provisions of this Agreement, the Manager shall act represent the Company in connection with all examinations of Company affairs by taxing authorities, including resulting administrative and judicial proceedings. The Partnership Representative shall be reimbursed by the Company for any reasonable expenses incurred in its capacity as Partnership Representative. The Company shall indemnify, defend and hold the Partnership Representative harmless from and against any loss, liability, damage, cost, or expense (including reasonable attorney’s fees) sustained or incurred as a result of any act or decision concerning the Company tax matters and within the scope of its responsibility as Partnership Representative.
(ii) In the event the Company incurs any liability for taxes, interest or penalties pursuant to the 2015 Act:
(A) the Partnership Representative may cause the Members (including any former Member) to whom such liability relates, as determined by the Partnership Representative in such role shall have its sole good faith discretion (taking into account the authority to appoint the “designated individual” specific tax status of the relevant Members (e.g., tax-exempt or non-U.S. person), to pay, and each such Member hereby agrees to pay, such amount to the Company, and such amount shall not be treated as a Capital Contribution and shall not be limited by or reduce such Member’s (or former Member’s) obligation to make Capital Contributions;
(B) any amount not paid by a Member (or former Member) at the time requested by the Partnership Representative shall accrue interest at an annual rate, compounded monthly, equal to the lesser of (A) eighteen percent (18%), and (B) the maximum rate of interest allowed by applicable law, until paid, and such Member (or former Member) shall also be liable to the Company for any damages resulting from a delay in making such payment beyond the date such payment is requested by the Partnership Representative, and for this purpose the fact that the Company could have paid this amount with other funds shall not be taken into account in determining such damages;
(C) without reduction in a Member’s (or former Member’s) obligation under clauses (A) and (B), any amount paid by the Company that is attributable to a Member (or former Member) as determined by the Partnership Representative in its sole good faith dicretion (taking into accounts the specific tax status of the relevant Members, e.g., tax-exempt or non-U.S. person), and that is not paid by such Member pursuant to clauses (A) and (B) shall be treated for purposes of Section 6(c) as a distribution to such Member (or former Member); and (D) if the Company is eligible to so elect, the Partnership Representative may cause the Company to elect pursuant to Code Section 6221(b) (as in effect after the effective date of the 2015 Act) (or successor provision) to have Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related not apply to any auditU.S. federal income tax audits and other proceedings for the taxable year. Further, examination, litigation or other tax-related proceeding, or otherwise related to its role if any partnership adjustment (as “partnership representative” pursuant to Sections 6221 through 6231 defined in Code Section 6241(2) (as in effect after the effective date of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company 2015 Act)) is required to make any payment for taxes, interest, additions to tax or penalties or determined with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle make such elections and take such other actions, including causing the Company to pay the amount of any such administrative or judicial proceeding or enter into any agreement adjustment under Code Section 6225 (including extending as in effect after the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F effective date of the Code2015 Act), making an election under Code Section 6226 (as in effect after the effective date of the 2015 Act(, or filing a petition in the Tax Court. The obligations of each Member (or former Member) under this Section 10(f) shall survive the Transfer by such Member of all or part of its Units herein, and the dissolution, liquidation and termination of the Company.
Appears in 1 contract
Partnership Representative. (a) PubCo The Manager shall act serve as the “partnership representative” of the Company within the meaning of Section 6223(a) of the Code (the “Partnership Representative”). The Partnership Representative shall inform each other Member of all material matters that may come to its attention in its capacity as the Partnership Representative by giving notice thereof on or before the fifth (5th) Business Day after becoming aware thereof and, within that time, shall forward to each other Member copies of all material written communications it may receive in that capacity. The Manager is hereby directed and authorized to take whatever steps it, in its reasonable discretion, deems necessary or desirable to perfect such role designation, including filing any forms or documents with the IRS, designating an individual to serve as the sole individual through whom the Partnership Representative will act, and taking such other action as may from time to time be required under the Treasury Regulations. The Manager will remain as the Partnership Representative so long as it retains any ownership interests in the Company unless it requests that it not serve as Partnership Representative; provided, however, that, notwithstanding the foregoing, the Manager shall not be permitted to resign unless and until the Members have found a replacement Partnership Representative approved unanimously in writing by the authority Members.
(b) Notwithstanding anything in this Agreement to appoint the “designated individual” contrary, and with the exception that the Class A Member Approval and Class B Member Approval described in this paragraph is not required for any Guaranteed Tax Credit Dispute, the Partnership Representative must: (i) obtain Class A Member Approval and Class B Member Approval (not to be unreasonably withheld, conditioned, or delayed) with respect to (y) commencing any judicial or administrative action or appealing any adverse determination of a Governmental Authority, in each case relating to Taxes and (z) surrendering, settling or compromising any audit or proceeding relating to Taxes, in each case of clause (y) or (z), only to the extent such action, adverse determination, audit or proceeding, as applicable, relates to a taxable period during which a Member other than NEP CEPF Member or any of its Affiliates held Class A Units or Class B Units; and (ii) inform and consult with each Class A Member and Class B Member, on a timely basis, regarding the status of investigations, audits, proceedings and negotiations with any Governmental Authority, in each case, to the extent relating to Taxes and a taxable period during which a Member other than NEP CEPF Member or any of its Affiliates held Class A Units or Class B Units. Any reasonable cost or expense incurred by the Partnership Representative in connection with its duties, including the preparation for or pursuance of administrative or judicial proceedings, shall be paid by the Company. For the avoidance of doubt, neither Class A Member Approval nor Class B Member Approval shall be required pursuant to this Section 8.03 in connection with any Guaranteed Tax Credit Dispute; provided that the Partnership Representative shall keep the Class A Members and the Class B Members reasonably informed in connection with the developments in any a Guaranteed Tax Credit Dispute and consider any reasonable comments received in connection therewith. 897613.05-WILSR01A - MSW
(c) The Partnership Representative may, in its reasonable discretion, make the election provided by Section 6221(b) of the Partnership for purposes of Code to have Subchapter C of Chapter 63 of the Code and not apply (the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, “Election Out”).
(d) If the Internal Revenue Service proposes an adjustment in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share amount of any adjustment to item of income, gain, loss, deduction deduction, or credit as determined in the reasonable good faith discretion of the Company, or any Member’s (or former Member’s) distributive share thereof, and such adjustment results in an “imputed underpayment” as described in Section 6225(b) of the Code (a “Covered Audit Adjustment”), the Partnership RepresentativeRepresentative may (but shall not be required to) elect, to the extent that such election is available (taking into account whether the Partnership Representative has received any needed information on a timely basis from the Members and former Members, if applicable), and the Election Out was not previously made, to apply the alternative method provided by Section 6226 of the Code (the “Alternative Method”). To the extent that the Partnership Representative does not elect the Alternative Method with respect to a Covered Audit Adjustment, the Partnership Representative shall use commercially reasonable efforts to (a) request information necessary to, and to make any modifications available under Sections 6225(c) of the Code to the extent that such modifications are available (taking into account whether the Partnership Representative has received any needed information on a timely basis from the Members and former Members) as would, reduce any Company Level Taxes payable by the Company with respect to the Covered Audit Adjustment, and (b) if requested by a Member, provide to such Member information allowing such Member to file an amended U.S. federal income Tax return, as described in Section 6225(c)(2) of the Code, to the extent that such amended return and payment of any related U.S. federal income Taxes would reduce any Company Level Taxes payable by the Company with respect to the Covered Audit Adjustment (after taking into account any modifications described in clause (a)). Similar procedures shall be followed in connection with any state or local income Tax audit that incorporates rules similar to Subchapter C of Chapter 63 of the Code.
(e) Notwithstanding any provision of this Agreement to the contrary, any Taxes, penalties, and interest payable under Subchapter C of Chapter 63 of the Code by the Company (“Company Level Taxes”) shall be treated as attributable to the Members (and former Members if applicable) of the Company, and the Partnership Representative shall cause the Company to allocate the burden of any such Company Level Taxes to those Members (and former Members if applicable) to whom such amounts are reasonably attributable (whether as a result of their status, actions, inactions, or otherwise), taking into account the effect of any modifications described in Section 8.03(d) that reduce the amount of Company Level Taxes. All Company Level Taxes allocated to a Member (or a former Member if applicable), at the option of the Manager, shall (i) be promptly paid to the Company by such Member (or former Member if applicable) (“Option A”) or (ii) be paid by reducing the amount of the current or next succeeding distribution or distributions which would otherwise have been made to such Member pursuant to Section 5.01 or Section 5.02 and, if such distributions are not sufficient for that purpose, by reducing the proceeds of liquidation otherwise payable to such Member pursuant to Section 5.03 (“Option B”). If the Manager selects Option A, the Company’s payment of the Company Level Taxes allocated to the applicable Member (or former Member if applicable) shall be treated as a distribution to such Member (or former Member) and the payment by such Member (or former Member) to the Company shall be treated as a capital contribution for U.S. federal income tax purposes; provided that such payments shall not affect the Capital Accounts of, any other contributions to be made by, or the distributions and allocations to be made to the applicable Members (or former Member) under this Agreement. If the Manager selects Option B, the applicable Member shall for all purposes of this Agreement be treated as having received a distribution of the amount of its allocable share of the Company Level Taxes at the time such Company Level Taxes are paid by the Company. To the fullest extent permitted by applicable Law, each Member (whether or not such Member becomes a Member’s obligations under this Section 9.4 shall survive Member after 897613.05-WILSR01A - MSW the dissolution, liquidation, termination Effective Date) hereby agrees to indemnify and winding-up of hold harmless the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices(or former Members if applicable) from and against any liability for Company Level Taxes allocated to such Member in accordance with this Section 8.03(e) (including, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments former Member, any Company Level Taxes allocated to such former Member that are attributable to taxable periods (or portions thereof) during which come such former Member was treated as holding an interest in the Company).
(f) If any Member intends to its attention; providedfile a notice of inconsistent treatment under Section 6222(c) of the Code, howeversuch Member shall give reasonable notice under the circumstances to the other Members of such intent and the manner in which the Member’s intended treatment of an item is (or may be) inconsistent with the treatment of that item by the other Members.
(g) Except as may be required by applicable Law, the Manager and the Company shall not make any election or take any action, including such elections or actions specifically authorized under this Section 8.03, that so long as Stagwell reasonably would be expected to have a disproportionate adverse effect on the XXXX Member or the NEP CEPF Member or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative Affiliates or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative direct or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codeindirect investors.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Nextera Energy Partners, Lp)
Partnership Representative. (a) PubCo shall act Pubco is hereby appointed the “tax matters partner” or the “partnership representative,” as the Partnership Representative and case may be (in such role shall have the authority to appoint each case, the “designated individual” Partnership Representative”), of the Partnership for purposes of Subchapter C of Chapter 63 Company under Section 6231 of the Code and prior to the Treasury Regulations relating thereto enactment of U.S. Public Law 114-74 or Section 6223 of the Code, as applicable, for each taxable year of the Company. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, comply with the rules set forth in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Code Sections 6221 through 6231 6241 and the Treasury Regulations promulgated or proposed thereunder (the “Revised Partnership Audit Procedures”). If the Partnership Representative is no longer capable of serving in such capacity or resigns, the Managing Member is authorized to appoint a successor, provided that such successor agree to all of the Codeterms of this Section 6.01 All such appointments, in its sole discretion. Each Member shall indemnify resignations, and reimburse appointments of successors will comply with the Company to the extent the Company Revised Partnership Audit Procedures.
(a) So long as Pubco or another non-individual is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or shall appoint a designated individual, within the meaning of and satisfying the qualification requirements of Treasury Regulations Section 301.6223-1(b)(3)(ii) (the “designated individual” in connection with Designated Individual”), who shall be the roles agent of and have the same authorities, rights, and responsibilities described as the Partnership Representative, including as provided in this Section 9.4 shall be borne 6.01. All references to the Partnership Representative set forth in this Section 6.01 will also apply to the Designated Individual and will include any actions by the Company. The Members agree to reasonably cooperate with the Company, Designated Individual on behalf of the Partnership Representative and the “designated individual” Company in that person’s capacity as necessary to carry out the intent of this Section 9.4Designated Individual.
(b) The Partnership Representative shall promptly deliver is authorized to each represent the Company (at the Company’s expense) in connection with all examinations of the other Members a copy of all noticesCompany’s affairs by taxing authorities, communications, reports including resulting administrative and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company itemsjudicial proceedings, and keep each of to expend Company funds for professional services and costs associated therewith; provided that the Partnership Representative shall notify the Members advised of all material developments with respect to any proposed adjustments which matters that come to its attention; providedattention in its capacity as Partnership Representative.
(c) The Company shall not be obligated to pay any fees or other compensation to the Partnership Representative in its capacity as such, howeverbut the Company shall reimburse the Partnership Representative for all reasonable out-of-pocket costs and expenses (including attorneys’ and other professional fees) incurred by it in its capacity as Partnership Representative. The Company shall defend, that indemnify, and hold harmless the Partnership Representative against any and all liabilities sustained or incurred as a result of any act or decision concerning Company tax matters and within the scope of such Member’s responsibilities as Partnership Representative, so long as Stagwell such act or any decision was done or made in good faith and does not constitute gross negligence or willful misconduct.
(d) If the Company receives a notice of its Permitted Transferees is a Member holding at least 30% proposed partnership adjustment (“NOPPA”) under Code Section 6231(a)(2), then the Partnership Representative shall notify the Members of such NOPPA and of the Common Units of Members’ opportunity to provide information relevant to a request by the CompanyPartnership Representative to the IRS to modify the proposed imputed underpayment pursuant to Code Section 6225(c). If the Partnership Representative receives a written response from one or more Members, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, then the Partnership Representative may not settle make a timely request to the IRS for a modification of the proposed imputed underpayment pursuant to Code Section 6225(c) and Treasury Regulations Section 301.6225-2 (or any successor regulations or other provisions) if such administrative or judicial proceeding or enter into any agreement modification would reduce the amount of the proposed adjustment set forth in the NOPPA. The Members (including extending and, if applicable, their pass-through beneficial owners) shall take such reasonable actions requested by the period of limitationsPartnership Representative with respect to the request for modification.
(e) with The Members acknowledge that the IRS, Company intends to make the election described in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F Section 6226 of the Code, unless the Partnership Representative determines not to make such election in its sole reasonable discretion. In the event an imputed underpayment or other partnership adjustment is included in a final partnership adjustment under Code Section 6231(a)(3) and the Company does not make an election under Code Section 6226, then the Partnership Representative shall use reasonable good faith efforts to apportion such underpayment or other adjustment among the Members 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 after consulting with the Company’s accountants or other tax advisors) so that, to the maximum extent possible, the tax and economic consequences of the adjustment and any associated interest and penalties are borne by the Members and former Members based upon their respective interests in the Company for the reviewed year, taking into account any differences in the amount of taxes attributable to each Member because of such Member’s status, nationality or other characteristics.
(f) In the case of a state, local, or non-U.S. audit or other tax proceeding under rules similar to the Revised Partnership Audit Procedures, references to sections of the Code and the Treasury Regulations and this Section 6.01 will be deemed to include corresponding and analogous provisions of applicable state, local or non-U.S. law, as applicable.
(g) The provisions of this Section 6.01, including the obligations of a Member under this Section 6.01, will survive a Member’s sale or other disposition of its interests in the Company and the termination, dissolution, liquidation, or winding up of the Company.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Xponential Fitness, Inc.)
Partnership Representative. (a) PubCo The General Partner or its delegate shall act as the Partnership Representative and in such role shall have the authority to appoint be designated the “designated individualpartnership representative” of the Partnership (the “Partnership Representative”) for purposes of, and in accordance with, Code Section 6223. The General Partner shall cause the preparation and timely filing of Subchapter C of Chapter 63 all Partnership tax returns and shall, on behalf of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisionsPartnership, filing all elections and taking timely file all other actionswritings required by any governmental authority having jurisdiction to require such filing, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 including all state and local withholding tax requirements on distributions and/or income allocations and shall cause the timely filing and reporting of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company such information to the extent governmental authorities and to Partners. At least thirty (30) days prior to the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share filing of any adjustment to incomematerial income tax return, gainincluding any amended return, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, General Partner will provide a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as draft thereof to each MemberInvestor Limited Partner for review, such Member’s withdrawal from the Company comment and consent, which consent shall not be unreasonably withheld or termination of the Member’s status as a Memberdelayed. Any reasonable, documented cost or expense incurred such material income tax return shall reflect any timely reasonable comments provided by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4an Investor Limited Partner.
(b) The Partnership Representative shall (i) promptly deliver to notify each Investor Limited Partner in writing of the other Members a copy contents of all notices, communications, reports and writings received any material communication (oral or written) from the IRS Internal Revenue Service or any state or local taxing authority within five (5) Business Days of receiving such communication and (ii) provide the Limited Partners with written notice of any material audit, investigation, administrative or judicial proceeding, or other tax-related proceeding (collectively, a “Tax Proceeding”) relating to or reasonably expected to result in an adjustment of Company itemsthe Partnership, and shall further keep each the Limited Partner informed of, and give the Limited Partner the right to participate in, any Tax Proceeding. The Partnership Representative shall not take any material action in its capacity as the “partnership representative” in a manner that shall bind a Limited Partner without the consent of the Members advised of all material developments Limited Partner.
(c) Each Partner does hereby agree to indemnify and hold harmless the Partnership and Partnership Representative from and against any liability with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any share of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative deficiency paid or judicial proceeding payable by the Partnership that is allocable to the Partner (as reasonably determined by the Partnership Representative and the Limited Partners) with respect to tax periods during an audited or reviewed taxable year for which Stagwell owned at least 30% such Partner was a Partner (for the avoidance of doubt, including any applicable interest and penalties), other than any such liability (including interest and penalties) that arises as a result of the Common Units gross negligence of the CompanyPartnership or the Partnership Representative. Further, each Partner does hereby agree to provide information reasonably required by the Partnership to enable the Partnership to reduce its liability from an audit adjustment, even if such tax is paid or audit adjustment occurs after the Partner is no longer a Partner in the Partnership. The obligations set forth in this Section 8.06 will survive such Partner’s ceasing to be a Partner of the Partnership and/or the termination, dissolution, liquidation and winding up of the Partnership.
(d) The General Partner (without regard to whether the General Partner is the Partnership Representative may not settle at such time) (i) shall provide the Strategic Investor with all notifications that would be required by Section 8.06(b), and shall keep the Strategic Investor informed of the progress of any such administrative or judicial proceeding or enter into any agreement Tax Proceeding, as if the General Partner were the Partnership Representative and the Strategic Investor were a Limited Partner and (including extending the period of limitationsii) shall consult in good faith with the IRS, in each case, without Strategic Investor about any Tax Proceeding which could reasonably be expected to have a material adverse effect on the prior written Strategic Investor. Neither the Partnership nor any Limited Partner shall have any liability to the Strategic Investor for a failure by the General Partner to satisfy the foregoing obligations to the Strategic Investor. Absent the consent of Stagwellthe Strategic Investor, which consent shall not be unreasonably withheldwithheld or delayed, delayed the Partnership Representative shall not settle or conditioned. Nothing herein shall diminishcompromise any tax liability involved in a Tax Proceeding, limit if such settlement or restrict compromise would have a material adverse effect on the rights of any Member under Subchapter C, Chapter 63, Subtitle F of Investor Limited Partner or the CodeStrategic Investor.
Appears in 1 contract
Partnership Representative. (a) PubCo shall act as the Partnership Representative and in such role shall have the authority to appoint The Manager will be the “designated individualPartnership Representative” of the Partnership for purposes Company within the meaning of Subchapter C of Chapter 63 Section 6223 of the Code Code, as enacted by the Bipartisan Budget Act of 2015, and the Treasury Regulations relating thereto Company and the Members will complete any necessary actions (including signing and delivering any required certificates or other documents) to effectuate such designation. The Manager shall inform each other Member of all significant matters that may come to its attention in its capacity as Partnership Representative by giving notice thereof within ten (10) days after becoming aware thereof and, within such time, shall forward to each other Member copies of all significant written communications it may receive in such capacity. The Partnership Representative shall have sole authority to make on behalf of the Company any and all tax elections available to be responsible for making all decisions, filing all elections made in the Partnership Representative’s capacity as such and taking to take all other actions, actions it is authorized to make in each case related its capacity as such under the Code. It is understood and agreed by the Members that the actions of the Partnership Representative will be binding on the Company and all of the Members. Each Member agrees that with respect to any auditfederal income Tax Return required to be filed by the Company that for any taxable period that the Company receives a notice of final partnership adjustment as described in Section 6226 of the Code with respect to such Tax Return, examination, litigation or other taxthe Partnership Representative shall make a push-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 out election under Section 6226(a) of the Code, in its sole discretion. and that each member agrees to be bound by such election.
(b) Each Member shall indemnify agrees that upon the request of the Partnership Representative such Member will take such actions as the Partnership Representative reasonably considers to be necessary or desirable, consistent with any actions taken or elections made by the Partnership Representative in accordance with this Section 10.3. The Partnership Representative, as applicable, is authorized and reimburse directed to represent the Company, at the Company’s expense, in connection with all examinations of the Company’s tax affairs by tax authorities, and to expend Company funds for associated professional services and costs. Any decisions made by the Partnership Representative, including whether or not to the extent the Company is required settle or contest any tax matter, whether or not to make any payment election, whether or not to extend the period of limitations for taxes, interest, additions to tax the assessment or penalties or with respect to a Member’s share collection of any adjustment to incometax and the choice of forum for such contest, gain, loss, deduction or credit as determined shall be made in the reasonable good faith sole discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4applicable.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Code.
Appears in 1 contract
Samples: Company Agreement
Partnership Representative. (a) PubCo shall Walgreens will act as the Partnership Representative unless otherwise removed by the Board. The Partnership Representative, on behalf of the 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 such role good faith believes to be in the best interests of the Company or the Members and shall have all other powers needed to fully perform hereunder including the authority power to appoint the “designated individual” 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 for purposes of Subchapter C of Chapter 63 Representative shall remain subject to the direction of the Code and Board in all respects to the Treasury Regulations relating thereto extent permitted by applicable law. The Partnership Representative shall be responsible for making all decisions, filing all elections promptly advise the Board of any tax proceedings with respect to the Company and taking all other actions, in each case related to keep the Board reasonably informed of any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” material developments of any such proceedings. If the Company makes an election pursuant to Sections 6221 through 6231 Section 6226 of the CodeCode with respect to an imputed underpayment, in its sole discretioneach Member shall comply with the corresponding requirements under the Budget Act. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or cooperate with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or to give effect to the “designated individual” in connection with the roles requirements of and responsibilities described in this Section 9.4 shall be borne elections made by the Company. The Members agree Company pursuant to reasonably cooperate with or as contemplated by the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4Budget 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 promptly deliver use commercially reasonable efforts, to each either (i) reduce any imputed underpayment by modifications permitted under Section 6225(c) of the Code or Treasury Regulations promulgated thereunder or other Members a copy relevant Treasury or IRS guidance, taking into account the tax status of all notices, communications, reports and writings received from the IRS relating to UMass or reasonably expected to result in (ii) make an adjustment of Company items, and keep each election under Section 6226(a) of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, Code. To the extent that so long as Stagwell or any of its Permitted Transferees the imputed underpayment is a Member holding at least 30% mitigated by modifications permitted under Section 6225(c) of the Common Units Code or Treasury Regulations promulgated thereunder, or other relevant Treasury or IRS guidance and such modifications relate to the status of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the CompanyUMass, the Partnership Representative may not settle shall use commercially reasonable efforts to allocate to UMass the benefit of any such administrative reduction or judicial proceeding or enter into any agreement modification of the required payment of the imputed underpayment attributable to the tax-exempt status of UMass.
(including extending d) The foregoing covenants and indemnification obligation of the period of limitations) with the IRS, in each caseMembers shall survive indefinitely and shall not terminate, without the prior written consent regard to any transfer of Stagwella Member’s Units, which consent shall not be unreasonably withheldwithdrawal as a Member, delayed or conditioned. Nothing herein shall diminishliquidation, limit dissolution or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F termination of the CodeCompany.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Partnership Representative. 8.2.1. Fxxxxxxxx Xxxxx Xxxxxxx shall be designated the “partnership representative” within the meaning of Section 6223(a) of the Code (athe “Partnership Representative”) PubCo and shall be authorized to take any actions necessary under Treasury Regulations or other guidance to cause such designation (including the designation of any individual to act on behalf of any entity Partnership Representative as may be required under the Partnership Representative Tax Audit Rules). The Company and each Member agrees that they shall be bound by the actions taken by the Partnership Representative, as described in such role shall have the authority to appoint the “designated individual” Section 6223(b) of the Partnership for purposes of Subchapter C of Chapter 63 Code; the Members consent to the election set forth in Section 6226(a) of the Code and agree to take any action, and furnish the Treasury Regulations relating thereto Partnership Representative with any information necessary, to give effect to such election if the Partnership Representative decides to make such election; and any imputed underpayment imposed on the Company pursuant to Section 6232 of the Code (and any related interest, penalties or other additions to tax) that the Partnership Representative reasonably determines is attributable to one or more Members shall be promptly paid by such Members to the Company (pro rata in proportion to their respective shares of such underpayment) within fifteen (15) days following the Partnership Representative’s request for payment (and any failure to pay such amount shall result in a subsequent reduction in distributions otherwise payable to such Member plus interest on such amount calculated at the prime rate published in the Wall Street Journal at the determinative time plus two percent (2%)). The Partnership Representative shall be responsible for making all decisions, filing all elections keep each Member reasonably and taking all other actions, in each case related promptly informed of any audits or administrative or judicial proceedings affecting or relating to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 the tax items of the CodeCompany, in its sole discretion. Each Member shall indemnify consult with the Members regarding the conduct of such audits or proceedings, and reimburse the Company to the extent the Company is be required to make obtain the prior written consent of the Required Member prior to entering into any payment for taxesagreement or settlement or making an election in relation to such audits or proceedings. For the avoidance of doubt, interest, additions to tax or penalties or with respect to a Member’s share (i) the costs of any adjustment to income, gain, loss, deduction action taken by or credit as determined in the reasonable good faith discretion on behalf of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in their respective Affiliates pursuant to this Section 9.4 paragraph shall be borne by the Company. The Members agree to reasonably cooperate Member benefitting from any such action (together with the Company, other Members similarly benefitting from such action as determined by the Partnership Representative in its reasonable discretion), (ii) the Partnership Representative will be entitled to rely conclusively on the advice of the Company’s independent accountant or other tax advisor in making any determination in respect of the Partnership Tax Audit Rules, and (iii) the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver not be required to each of indemnify any Member or the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments taxes incurred under the Partnership Tax Audit Rules.
8.2.2. Each Member shall provide to the Company upon request such information, forms or representations which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle reasonably request with respect to the Company’s compliance with applicable tax laws, including, any such administrative information, forms or judicial proceeding representations requested by the Partnership Representative to assist in obtaining any exemption, reduction or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights refund of any Member under Subchapter Cwithholding or other taxes imposed by any taxing authority or other governmental agency upon the Company or amounts paid to the Company.
8.2.3. Notwithstanding any provision of this Agreement to the contrary, Chapter 63, Subtitle F the provisions of this Section 8.2 shall survive the termination or liquidation of the CodeCompany or the termination of any Member’s interest in the Company and shall remain binding on the Members following each such Member’s termination of its interest in the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Global Technologies LTD)
Partnership Representative. (a) PubCo shall The Treasurer is designated to act as the partnership representative of the Company pursuant to Code section 6223 (the "Partnership Representative and in such role shall have Representative") with the authority to appoint the “designated individual” act on behalf of the Partnership for purposes of Subchapter Company under subchapter C of Chapter chapter 63 of subtitle F of the Code and the Treasury Regulations relating thereto Code. The Partnership Representative shall will be responsible entitled to reimbursement from the Company for making all decisions, filing all elections costs incurred in performing the duties under this Section 3.03. The Partnership Representative will allocate any tax liability payable (and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” actually paid) by the Company pursuant to Sections 6221 through 6231 subchapter C of chapter 63 of subtitle F of the Code, Code among the Persons who were Members during any "reviewed year" (as defined in its sole discretion. Each Member shall indemnify and reimburse Code section 6225(d)(1)) in a manner consistent with the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to manner in which income, gain, loss, deduction or deduction, and credit as determined in was allocated among such Persons for such reviewed year pursuant to the reasonable good faith discretion terms of this Agreement, to the Partnership Representativegreatest extent possible. To the fullest extent permitted by applicable Lawlaw, each Person who was a Member’s obligations Member during any reviewed year will indemnify and hold harmless the Company and the other Members (including other former, current, and future Members, as applicable) from and against any liability for Company-level taxes allocated to such Person under this Section 9.4 shall survive the dissolution, liquidation, termination and winding3.03(b). Each Member or former Member will pay all Company-up of level tax liabilities in a prompt manner to the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne on written request by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative liability and the “designated individual” as necessary to carry out the intent obligations of each Member under this Section 9.4.3.03(b) will survive any transfer of a
(b) The Members must take all actions reasonably requested by the Partnership Representative shall promptly deliver Representative, including paying any imputed underpayment pursuant to each 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 other Members a copy of all notices, communications, reports and writings received from Member with the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each Company's treatment of the Members advised of all material developments item. Any deficiency for taxes imposed on any Member (including penalties, additions to tax, or interest imposed with respect to any proposed adjustments which come such taxes and taxes imposed pursuant to its attention; providedCode section 6226) will be paid by the Member and, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of if required to be paid by the Company, Stagwell shall have will be recoverable from the right to observe and participate through representatives of its own choosing (at their sole expense) Member as provided in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the CodeSection 3.03(b).
Appears in 1 contract
Partnership Representative. (a) PubCo Atlanticus Holdings Corp. shall act as be the “partnership representative” of the Company within the meaning of Section 6223(a) of the Code (the “Partnership Representative”) and the Chief Financial Officer of Atlanticus Holdings Corp. shall be the “designated individual” within the meaning of Section 6223 of the Code and Treasury Regulations promulgated thereunder (the “Designated Individual”).
(b) The Partnership Representative and the Designated Individual shall have the right to make on behalf of the Company any and all elections and take any and all actions that are available to be made or taken by the Partnership Representative, the Designated Individual or the Company under the Code (including an election under Section 6221(b) or 6226(a) of the Code), and the Members shall take such actions requested by the Partnership Representative consistent with any such elections made and actions taken by the Partnership Representative or the Designated Individual, including filing amended tax returns and paying any tax due in accordance with Section 6225(c)(2) of the Code, it being understood that no such role amended tax return shall be filed in accordance with such section with respect to the Company without the advance written consent of the Partnership Representative or the Designated Individual in its sole discretion. The Partnership Representative and the Designated Individual shall have the authority to appoint amend this Agreement to make any changes in good faith consultation with the “designated individual” Company’s tax accountants and tax counsel as are necessary or appropriate: (i) to reduce any Company level assessment under Section 6225 of the Partnership for purposes Code; (ii) to determine any apportionment of Subchapter C of Chapter 63 of any tax; or (iii) to comply with the Code and administrative, judicial or legislative interpretations thereof or changes thereto.
(c) Each Member shall provide to the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisionsor the Designated Individual such information (or, if applicable, certify as to filing all elections and taking all other actions, in each case related of initial or amended tax returns) as is reasonably requested by the Partnership Representative or the Designated Individual to enable the Partnership Representative or the Designated Individual (i) to reduce any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 Company level assessment under Section 6225 of the Code, in its sole discretion. Each Member shall indemnify and reimburse (ii) to determine the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share allocation of any adjustment to item of income, gain, loss, deduction or credit as determined of any such Company level assessment among the Members, in the reasonable good faith discretion of consultation with the Company's tax accountants and tax counsel, (iii) to take any and all actions that are available to be made or taken by the Partnership Representative. To , the fullest extent permitted by applicable LawDesignated Individual or the Company under the Code, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up or (iv) to comply with or be eligible to invoke any aspect of the Code in any other respect.
(d) In the event the Company and shall surviveincurs any liability for taxes, interest or penalties:
(i) The Partnership Representative or the Designated Individual may, or if such amounts are material, shall, cause the Members (including any former Member) to whom such liability relates, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred determined by the Partnership Representative or the “designated individual” Designated Individual, in connection with the roles its sole good faith discretion and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate after consulting with the Company’s and the affected Member’s tax advisors, to pay, and each such Member hereby agrees to pay, such amount to the Company, and such amount shall not be treated as a Capital Contribution; and
(ii) Any amount not paid by a Member (or former Member) within ten (10) days following the receipt of the request to pay delivered by the Partnership Representative and the “designated individual” as necessary to carry out the intent Designated Individual shall be treated for purposes of this Agreement as a Withholding Advance governed by Section 9.47.03(b) hereof.
(be) The obligations of each Member (or former Member) under this Section 11.02 and Section 7.03(b) shall survive the Transfer or redemption by such Member of its Units and the termination of this Agreement or the dissolution of the Company.
(f) The Partnership Representative or the Designated Individual shall promptly deliver prepare or cause to each of the other Members a copy of be prepared all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units tax returns required of the Company, Stagwell which returns shall have be reviewed in advance of filing by a certified public accountant selected by the right Members. The Members shall file their individual or corporate returns in a manner consistent with the Company’s tax and information returns.
(g) The Partnership Representative or the Designated Individual may, if it determines that the retention of accountants or other professionals would be in the best interests of the Company, retain such accountants or professionals to observe and participate through representatives of its own choosing (at their sole expense) assist in any tax proceedingsaudits. In respect of The Company shall indemnify and reimburse the Partnership Representative and the Designated Individual for all expenses, including legal and accounting fees, claims, liabilities, losses and damages to the extent borne by the Partnership Representative or the Designated Individual, incurred in connection with any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units any audit of the Company, ’s tax returns. The taking of any action and the incurring of any expense by the Partnership Representative may not settle and the Designated Individual in connection with any such administrative or judicial proceeding or enter into proceeding, except to the extent required by Applicable Law, is a matter in the sole discretion of the Partnership Representative and the Designated Individual, as applicable.
(h) The Partnership Representative and the Designated Individual may resign at any agreement (including extending time. If Atlanticus Holdings Corp. ceases to be the period Partnership Representative for any reason, the holders of limitations) a majority of the Class A Units shall appoint a new Partnership Representative. If Chief Financial Officer of Atlanticus Holdings Corp. ceases to be the Designated Individual, the holders of a majority of the Class A Units in consultation with the IRS, in each case, without the prior written consent of Stagwell, which consent Partnership Representative shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codeappoint a new Designated Individual.
Appears in 1 contract
Partnership Representative. (a) PubCo The Managing Member shall act be designated as the “partnership representative” (within the meaning of Section 6223 of the Code (or any corresponding or similar provision of state, local or foreign tax law)) (collectively, the “Partnership Representative Representative”), to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by Taxing Authorities, including resulting judicial and in such role administrative proceedings, and to expend Company funds for professional services and costs associated therewith. The Managing Member shall have the authority to appoint the any “designated individual” of permitted under Treasury Regulations Sections 301.6223-1 and 301.6223-2 (and any comparable or similar provisions under state or local law), and unless the context otherwise requires, any reference to the Partnership for purposes of Subchapter C of Chapter 63 of Representative in this Agreement includes any “designated individual.” Such “designated individual” shall act as directed by the Code and the Treasury Regulations relating thereto Partnership Representative. The Partnership Representative shall be responsible for making keep the Members reasonably informed on a timely basis of all decisionsmaterial developments regarding any income and other material tax audits, filing all elections and taking all other actionsexaminations, in each case related to any audit, examination, litigation or other tax-related proceedinginvestigations, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse proceedings involving the Company and any other JV Entity (but only to the extent that the Company is required to make any payment for taxesreceives relevant information from such JV Entity). In its capacity as Partnership Representative, interest, additions to the Managing Member shall oversee the Company’s tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined affairs in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up overall best interests of the Company and shall survivethe Members; provided, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by that the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the no right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any settlement agreement (including extending the period of limitations) with the IRS, or otherwise settle or compromise any matter in each case, its capacity as Partnership Representative without the prior written consent of Stagwelleach Member affected by such matter; provided further, which that any election proposed to be made pursuant to Code Sections 6221-6241 (or any corresponding or similar section of state or local tax law) or other action proposed to be taken by the Partnership Representative in connection with any audit, examination or judicial or administrative proceeding that could affect any Member’s liability for taxes, tax status, or the taxes of the Company shall require the prior written consent of the affected Member. The provisions of this Section 7.12.6 shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict survive the rights Transfer of any Member under Subchapter CMember’s Equity Interest, Chapter 63the withdrawal of any Member, Subtitle F the dissolution or liquidation of the CodeCompany, the termination of this Agreement and the removal of the Managing Member.
Appears in 1 contract
Samples: Joint Venture and Limited Liability Company Agreement (Griffin Realty Trust, Inc.)
Partnership Representative. 1. The Managing Member (aor its designee) PubCo shall act serve as the “partnership representative” (as provided in Section 6223(a) of the Code) with respect to the Company (the “Partnership Representative”). Each Member expressly consents to such designation and agrees that it will execute, acknowledge, deliver, file and record at the appropriate public offices such documents as may be necessary, appropriate, or requested by the Company or the Partnership Representative and in to evidence such role shall have the authority to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto consent.
2. The Partnership Representative shall have the sole authority to act on behalf of the Company in connection with and make all relevant decisions regarding application of the Partnership Audit Rules (defined below), including, but not limited to, any elections under the Partnership Audit Rules or any decisions to settle, compromise, challenge, litigate or otherwise alter the defense of any proceeding before the IRS. Unless otherwise determined by the Managing Member, any taxes, penalties, and interest payable by the Company (or any entity that disregarded for U.S. federal income tax purposes in which the Company owns an interest) under the Partnership Audit Rules shall be responsible for making all decisionstreated as specifically attributable to the Members, filing all elections and taking all other the Partnership Representative, in consultation with the Company's tax advisors, shall use reasonable best efforts to allocate the burden of (or any diminution in distributable proceeds resulting from) any such taxes, penalties or interest to those Members to whom such amounts are specifically attributable (whether as a result of their status, actions, in each case related to any auditinactions or otherwise), examinationas determined by the Partnership Representative. In connection with the foregoing, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent that the Company is required assessed amounts under the Partnership Audit Rules, each current or former Member to make any payment for taxeswhich the assessment relates shall remit to the Company, interestwithin thirty (30) calendar days’ of delivery to such current or former Member of written notice by the Partnership Representative, additions an amount equal to tax or penalties or with respect to a such Member’s allocable share of the assessment, including such Member’s allocable share of any adjustment to income, gain, loss, deduction or credit as determined in interest imposed on the reasonable good faith discretion Company.
3. Promptly following the written request of the Partnership Representative. To , the Company shall, to the fullest extent permitted by applicable Lawlaw, a Member’s obligations under this Section 9.4 shall survive reimburse and indemnify the dissolutionPartnership Representative for all reasonable expenses, liquidationincluding reasonable legal and accounting fees, termination claims, liabilities, losses and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense damages incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to the tax periods during which Stagwell owned at least 30% matters of the Common Units Company or otherwise in connection with its role as Partnership Representative under this Agreement, except to the extent arising from the fraud, willful misconduct or intentional violation of the Company, law of the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the CodeRepresentative.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CrossAmerica Partners LP)
Partnership Representative. (a) PubCo shall act IVC is hereby designated as the Company’s “partnership representative” within the meaning of Code Section 6223 and any analogous provisions set forth in any applicable state or local tax Law, subject to replacement from time to time by the Board (in such capacities, the “Partnership Representative”). To the extent provided under the Code or applicable state, local or foreign tax Law, the Partnership Representative shall be authorized and required to represent the Company (at the Company’s expense) in such role shall have the authority to appoint the “designated individual” connection with all examinations of the Partnership Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend the Company’s funds for purposes professional services reasonably incurred in connection therewith, in each case subject to this Section 10.03. Each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto such proceedings. The Partnership Representative shall be responsible reimbursed for making all decisionsreasonable out-of-pocket costs and expenses incurred in its performance of its duties as described herein.
(b) The Partnership Representative shall (i) promptly furnish to the Members all significant notices concerning administrative or judicial proceedings relating to federal income tax matters, filing (ii) inform each Member of all elections significant matters that come to its attention in its capacity as Partnership Representative by giving notice thereof reasonably promptly after becoming aware thereof and taking (iii) within a reasonable time, forward to each Member copies of all other actions, significant written communications it receives and submits in each case related its capacity as Partnership Representative.
(c) The Partnership Representative may take any action or make any election (including the election under Section 6221(b) of the Code) contemplated to any audit, examination, litigation or other tax-related proceedingbe taken by a partnership representative by the Code and the regulations promulgated thereunder, or otherwise related to its role as “partnership representative” pursuant relating to Sections 6221 through 6231 6241 of the Code, and any other actions necessary or appropriate in connection with any audit or subsequent administrative proceeding relating to state, local or foreign income tax matters, with the consent of the Board. Without limiting the foregoing, the Partnership Representative shall not (i) settle any tax controversy, (ii) commence any judicial action with respect to any income tax matter or appeal any adverse income tax determination of a judicial tribunal, (iii) agree to extend the statute of limitations period of the Company in respect of any taxes, (iv) intervene in any action with respect to income taxes of the Company; (v) file any request for administrative adjustment with respect to income taxes of the Company; or (vi) make the election under Section 6226(a) of the Code, in its sole discretion. Each each case, without first receiving approval from the Board; provided that, the Partnership Representative shall not settle any Tax controversy in a manner that binds a Member shall indemnify if such settlement disproportionately and reimburse materially adversely affects a Member without the consent of such Member.
(d) If the Company receives a notice of final partnership adjustment from the IRS, the Partnership Representative shall promptly furnish to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to each Member a reasonably detailed statement showing each Member’s share of any adjustment to income, gain, loss, deduction or credit (as determined in the reasonable good faith discretion notice of final partnership adjustment). The Board, in consultation with the Partnership Representative, shall determine whether to (i) make the election described in Section 6226(a) of the Code, (ii) require the Members to amend their tax returns pursuant to Section 6225(c)(2)(A) of the Code or comply with the alternative procedure pursuant to Section 6225(c)(2)(B) of the Code or (iii) cause the Company to pay the full amount of any imputed underpayment. To If and to the fullest extent permitted the Company does not elect to apply Section 6226 of the Code to any adjustment, then the Company shall use commercially reasonable efforts to allocate the burden of any taxes, interest, penalties and related expenses that are payable by applicable Lawthe Company as a result of such adjustment to the Members to which such taxes are attributable. In furtherance, and not in limitation, of the preceding sentence, each Member (including any Member that ceases to be a Member’s obligations under this Section 9.4 shall survive ) agrees to pay to the dissolutionCompany, liquidation, termination and winding-up of within thirty (30) days following a written demand by the Company and shall survive, as to each MemberCompany, such Member’s withdrawal from allocable share of any taxes imposed on the Company pursuant to Section 6225 and the Company shall be entitled to withhold pursuant to Section 5.06 from any distributions otherwise payable to a Member such Member’s allocable share of such taxes.
(e) Each Member hereby agrees, upon request by the Company or the Partnership Representative, to timely provide any information and comply with any requirements (including the filing of any tax returns and the payment of any taxes) that the Partnership Representative determines is or are necessary or advisable to (i) reduce the amount of any tax (including an “imputed underpayment” within the meaning of Section 6225 of the Code or similar provisions of state, local or non-U.S. law), interest, penalties or similar amounts the cost of which is (or would otherwise be) borne by the Company (directly or indirectly) or (ii) make any election permitted by the Code and this Agreement.
(f) Notwithstanding anything to the contrary in this Agreement, the rights and obligations of the Members and the Partnership Representative under this Section 10.03 (including any indemnification obligations) shall survive (i) any amendment to this Agreement with respect to any period prior to such amendment, (ii) the transfer by a Member of its Company Interest or a withdrawal by a Member or (iii) the liquidation or termination of the Member’s status as a Member. Any reasonableCompany, documented cost or expense incurred by and this Section 10.03 shall remain binding on the Members and the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle after any such administrative amendment, transfer, withdrawal, liquidation or judicial proceeding or enter into any agreement (including extending termination for the period of limitations) with time necessary to resolve any and all income tax matters relating to the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F Fiscal Years governed by terms of the CodeAgreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (GNC Holdings, Inc.)
Partnership Representative. (a) PubCo shall act Unless and until another Member is designated as the Partnership Representative and in such role shall have the authority to appoint the “designated individual” of the Partnership for purposes of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 within the meaning of Section 6231(a)(7) of the CodeCode (the “Partnership Representative”) by the Board, the Partnership Representative of the Company will be the Intel Member. Subject to the limitations set forth in Article 8 hereof, the Partnership Representative shall (i) keep the other Members promptly informed about any communications with any Governmental Entities in connection with any income or other material tax audit or proceeding of the Company, (ii) consult with the other Members in connection with any such audit or other proceeding about strategy and give the other Members the opportunity (at the sole cost and expense of such Members) to attend any meetings with the Governmental Entities in such audit or other proceeding and (iii) provide the Members with an opportunity to review and comment on any material substantive written communications with such Governmental Entities relating to such audit or other proceeding, in its sole discretioneach case, to the extent any such Member could reasonably be expected to be adversely impacted by such audit or proceeding. To the extent any settlement or compromise with respect to Company tax matters could reasonably be expected to have a disproportionate and adverse impact on the Brookfield Member, the Partnership Representative shall not enter into such settlement agreement with any Governmental Entities without the prior written consent of the Brookfield Member (which consent shall not be unreasonably withheld, conditioned or delayed). Each Member shall indemnify and reimburse the Company hereby agrees to the extent the Company is use reasonable efforts (i) to take such actions as may be required to make any payment for taxes, interest, additions to tax or penalties or with respect to a effect the Intel Member’s share of any adjustment to income, gain, loss, deduction or credit designation as determined in the reasonable good faith discretion of the Partnership Representative. To , (ii) supply to the fullest extent permitted Company, as reasonably requested by applicable Lawthe Partnership Representative, a Member’s obligations under this Section 9.4 shall survive all reasonably accessible, pertinent information in its possession relating to the dissolution, liquidation, termination and winding-up operations of the Company necessary to enable the Company’s tax returns to be prepared and shall survivefiled, and (iii) to cooperate to provide any information or take such other actions as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred may be reasonably requested by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this order to modify any Imputed Underpayment Amount pursuant to Code Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, the Partnership Representative and the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention6225(c); provided, however, that so long as Stagwell none of the Members shall be required to file any amended U.S. federal income tax return or comply with the alternative procedure described in Code Section 6225(c)(2)(B), or pay any tax due in connection with such tax return in accordance with Code Section 6225(c)(2) or any corresponding provision of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative applicable state or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRSlocal law, in each case, without the prior written consent of Stagwell, such Member (which consent shall not be unreasonably withheld, delayed conditioned or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the Codedelayed).
Appears in 1 contract
Partnership Representative. With respect to tax years beginning after December 31, 2017, the partnership representative of the Company pursuant to Section 6223(a) of the Internal Revenue Code shall be any person (aincluding any Member) PubCo shall act designated by the Board of Managers, subject to replacement by action of a Majority Interest of the Members to the extent permitted by the provisions of the Internal Revenue Code or Treasury Regulations issued thereunder. (Any person who is designated as the partnership representative is referred to herein as the “Partnership Representative”). The Partnership Representative is authorized to take such actions and to execute and file all statements and forms on behalf of the Company which may be permitted or required by the applicable provisions of the Internal Revenue Code or Treasury Regulations issued thereunder, provided that the Partnership Representative and in such role may file any suit only with the approval of a Majority Interest of the Members. The Partnership Representative shall have the sole authority to appoint the “designated individual” act on behalf of the Partnership for purposes of Company under Subchapter C of Chapter 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 Treasury Regulations relating thereto Company and all Members shall be bound by the actions taken by the Partnership Representative in such capacity. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse reimbursed by the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense all expenses incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by all examinations of the Company’s affairs by tax authorities, including resulting proceedings, and is authorized to expend Company funds for professional services and costs associated therewith. The Partnership Representative shall keep the Members agree informed as to reasonably cooperate with the status of any audit of the Company’s tax affairs. Without first obtaining the approval of a Majority Interest of the Members, the Partnership Representative and the “designated individual” as necessary shall not, with respect to carry out the intent of this Section 9.4.
Company tax matters: (ba) The Partnership Representative shall promptly deliver to each of the other Members enter into a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments settlement agreement with respect to any proposed adjustments which come to its attention; providedtax matter, however, that so long as Stagwell or (b) enter into an agreement extending the statute of limitations. If an audit of any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell ’s tax returns shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Companyoccur, the Partnership Representative may shall not settle or otherwise compromise assertions of the auditing agent which may be adverse to any such administrative or judicial proceeding or enter into any agreement (including extending Member as compared to the period of limitations) with position taken on the IRS, in each case, Company’s tax returns without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditionedeach such affected Member. Nothing herein shall diminish, limit or restrict If an audit results in an imputed underpayment by the rights of any Member Company as determined under Subchapter C, Chapter 63, Subtitle F Section 6225 of the Internal Revenue Code, the Partnership Representative, with the approval of a Majority Interest of the Members, may make the election under Section 6226(a) of the Internal Revenue Code 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 an election is made, the Company 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 any related interest, penalty, addition to tax, or additional amount.
Appears in 1 contract
Samples: Limited Liability Company Agreement (WildHorse Resource Development Corp)
Partnership Representative. (a) PubCo shall act as the “partnership representative” within the meaning of Section 6223 of the Code (the “Partnership Representative”). For each Fiscal Year (or portion thereof) in which the Partnership Representative and in such role is an entity, the Company shall have the authority to appoint the “designated individual” of identified by the Partnership for purposes of Subchapter C of Chapter 63 of Representative to act on its behalf in accordance with the Code and the applicable Treasury Regulations relating thereto or analogous provisions of state or local law. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretiondiscretion and shall keep the Seller Representative reasonably informed of the status of any such matters on a prompt and regular basis. Each Member shall notify the Partnership Representative upon receipt of any notice of tax examination by federal, state or local authorities of tax matters relating to the Company. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Company, Company and the Partnership Representative and Representative, including doing or refraining from doing all things reasonably requested by the “designated individual” Partnership Representative, as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall , including promptly deliver to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, furnishing information requested by the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F of the CodeRepresentative.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stryve Foods, Inc.)
Partnership Representative. 8.2.1. Bxxxx Xxxxxxxx shall be designated the “partnership representative” within the meaning of Section 6223(a) of the Code (athe “Partnership Representative”) PubCo and shall be authorized to take any actions necessary under Treasury Regulations or other guidance to cause such designation (including the designation of any individual to act on behalf of any entity Partnership Representative as may be required under the Partnership Representative Tax Audit Rules). The Company and each Member agrees that they shall be bound by the actions taken by the Partnership Representative, as described in such role shall have the authority to appoint the “designated individual” Section 6223(b) of the Partnership for purposes of Subchapter C of Chapter 63 Code; the Members consent to the election set forth in Section 6226(a) of the Code and agree to take any action, and furnish the Treasury Regulations relating thereto Partnership Representative with any information necessary, to give effect to such election if the Partnership Representative decides to make such election; and any imputed underpayment imposed on the Company pursuant to Section 6232 of the Code (and any related interest, penalties or other additions to tax) that the Partnership Representative reasonably determines is attributable to one or more Members shall be promptly paid by such Members to the Company (pro rata in proportion to their respective shares of such underpayment) within fifteen (15) days following the Partnership Representative’s request for payment (and any failure to pay such amount shall result in a subsequent reduction in distributions otherwise payable to such Member plus interest on such amount calculated at the prime rate published in the Wall Street Journal at the determinative time plus two percent (2%)). The Partnership Representative shall be responsible for making all decisions, filing all elections keep each Member reasonably and taking all other actions, in each case related promptly informed of any audits or administrative or judicial proceedings affecting or relating to any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 the tax items of the CodeCompany, in its sole discretion. Each Member shall indemnify consult with the Members regarding the conduct of such audits or proceedings, and reimburse the Company to the extent the Company is be required to make obtain the prior written consent of the Required Member prior to entering into any payment for taxesagreement or settlement or making an election in relation to such audits or proceedings. For the avoidance of doubt, interest, additions to tax or penalties or with respect to a Member’s share (i) the costs of any adjustment to income, gain, loss, deduction action taken by or credit as determined in the reasonable good faith discretion on behalf of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in their respective Affiliates pursuant to this Section 9.4 paragraph shall be borne by the Company. The Members agree to reasonably cooperate Member benefitting from any such action (together with the Company, other Members similarly benefitting from such action as determined by the Partnership Representative in its reasonable discretion), (ii) the Partnership Representative will be entitled to rely conclusively on the advice of the Company’s independent accountant or other tax advisor in making any determination in respect of the Partnership Tax Audit Rules, and (iii) the “designated individual” as necessary to carry out the intent of this Section 9.4.
(b) The Partnership Representative shall promptly deliver not be required to each of indemnify any Member or the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments taxes incurred under the Partnership Tax Audit Rules.
8.2.2. Each Member shall provide to the Company upon request such information, forms or representations which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, the Partnership Representative may not settle reasonably request with respect to the Company’s compliance with applicable tax laws, including, any such administrative information, forms or judicial proceeding representations requested by the Partnership Representative to assist in obtaining any exemption, reduction or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights refund of any Member under Subchapter Cwithholding or other taxes imposed by any taxing authority or other governmental agency upon the Company or amounts paid to the Company.
8.2.3. Notwithstanding any provision of this Agreement to the contrary, Chapter 63, Subtitle F the provisions of this Section 8.2 shall survive the termination or liquidation of the CodeCompany or the termination of any Member’s interest in the Company and shall remain binding on the Members following each such Member’s termination of its interest in the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Edison Nation, Inc.)
Partnership Representative. (a) PubCo The Members acknowledge that Section 1101 of the Bipartisan Budget Act is applicable to the Company. Accordingly, (i) Pattern Member shall act as be designated the “Partnership Representative Representative” within the meaning of Code Section 6223 and in such role shall have the authority to appoint designate the “designated individual” of through whom it shall act in its capacity as Partnership Representative, (ii) the Partnership for purposes Representative will (or will cause the Company to) give notice to the other Members of Subchapter C of Chapter 63 of the Code and the Treasury Regulations relating thereto . The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in each case related to any audit, examinationadministrative or judicial proceedings, litigation meetings or conferences with the IRS or other tax-related proceeding, or otherwise related similar matters that come to its role as “partnership representative” pursuant to Sections 6221 through 6231 of attention, and (iii) in the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent event that the Company is required to make any payment for taxes, interest, additions to tax or penalties or with respect to issued a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to each Member, such Member’s withdrawal from the Company or termination of the Member’s status as a Member. Any reasonable, documented cost or expense incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne by the Company. The Members agree to reasonably cooperate with the Companyfinal partnership adjustment, the Partnership Representative and will undertake the “designated individualpull-in” procedure contemplated by Code Section 6225(c)(2)(B) with respect to such adjustment, or if the “pull-in” procedure is not available, the Partnership Representative will make the “push-out” election contemplated by Code Section 6226(a) in a timely manner, provided that the “push-out” election is available to the Company and Members holding more than 50% of the Units have not directed otherwise. If the Partnership Representative undertakes the “pull-in” procedure or makes the “push-out” election, the Partnership Representative shall follow the procedures required in connection with such procedure or election to make inapplicable to the Company the requirement in Code Section 6225 that the Company pay any “imputed underpayment” as necessary to carry out the intent of this Section 9.4that term is used in such Section.
(b) The Partnership Representative shall promptly deliver is authorized to each take such actions and to execute and file all statements and forms and Tax returns on behalf of the other Members a copy of all notices, communications, reports and writings received from Company which may be permitted or required by the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each applicable provisions of the Members advised Code or Treasury Regulations issued thereunder, provided that the Partnership Representative may file suit only with approval of all material developments with respect Investor and, to any proposed adjustments which come to its attention; providedthe extent Pattern Member (or, however, that so long as Stagwell or if Pattern Member has Disposed of any of its Permitted Transferees Units, any of its successors or assigns) is not the Partnership Representative, Pattern Member (and, if Pattern Member has Disposed of any of its Units, each such successor or assign). The Partnership Representative shall act in a Member holding at least 30% of similar capacity under any applicable non-U.S., state or local tax law. The Partnership Representative will not cause the Common Units of Company to be treated as other than a “partnership” for federal income tax purposes. All reasonable out-of-pocket expenses incurred by the Partnership Representative while acting in such capacity shall be paid or reimbursed by the Company. The Partnership Representative shall, Stagwell shall have in its discretion, make any and all elections applicable to the right to observe and participate through representatives of its own choosing (at their sole expense) in any Company under the Code or state or local tax proceedingslaw. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of Notwithstanding the Common Units of the Companyforegoing, the Partnership Representative may not settle any such administrative or judicial proceeding or enter into any agreement shall (including extending i) make an election under Code Section 754 to adjust the period basis of limitationsthe Company’s property upon receipt of a written request from a Member and (ii) with shall, to the IRSextent permitted under applicable Law, in each caseadopt as the Company’s fiscal year the calendar year or, without if different, PEGI’s fiscal year.
(c) The Partnership Representative shall have the prior written consent exclusive right and sole authority to act on behalf of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member Company under Subchapter C, Chapter 63, Subtitle F C of Section 63 of the Code.Code -45-
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pattern Energy Group Inc.)
Partnership Representative. (a) PubCo BDCA shall act as the Partnership Representative “partnership representative” of the Company for purposes of Section 6223(a) of the Code (and in such role shall have the authority to appoint the any similar capacity under applicable state or local tax law) and a “designated individual” that is subject to the control of BDCA will be appointed by the Company through whom the partnership representative will act (individually and collectively referred to as the “Partnership Representative”), and, subject to certain matters requiring Prior Board Approval or otherwise specifically provided for in this Agreement, shall have sole discretion to make or refrain from making any election or otherwise act on behalf of the Partnership for purposes of Subchapter C of Chapter 63 of Company in any audit proceeding involving the Code and the Treasury Regulations relating thereto Company. The Partnership Representative shall be responsible for making all decisions, filing all elections and taking all other actions, in promptly advise each case related to Member of any audit, examination, litigation or other tax-related proceeding, or otherwise related to its role as “partnership representative” pursuant to Sections 6221 through 6231 of the Code, in its sole discretion. Each Member shall indemnify and reimburse the Company to the extent the Company is required to make any payment for taxes, interest, additions to tax or penalties or proceedings with respect to a Member’s share of any adjustment to income, gain, loss, deduction or credit as determined in the reasonable good faith discretion of the Partnership Representative. To the fullest extent permitted by applicable Law, a Member’s obligations under this Section 9.4 shall survive the dissolution, liquidation, termination and winding-up of the Company and shall survive, as to keep each Member, Member reasonably informed of any material developments of any such Member’s withdrawal from the Company or termination of the Member’s status as a Memberproceedings. Any reasonable, documented cost or expense All reasonable out-of-pocket expenses incurred by the Partnership Representative or the “designated individual” in connection with the roles and responsibilities described in this Section 9.4 shall be borne paid or reimbursed by the Company. The Members agree Each Member (or former Member) agrees to reasonably cooperate with indemnify the Company for any taxes (and related interest, penalties or other charges or expenses) payable by the Company and attributable to such Member’s (or former Member’s) interest in the Company, as determined by the Partnership Representative and Board. The obligations hereunder shall survive the “designated individual” as necessary to carry out withdrawal of any Member, the intent winding up or dissolution of this Section 9.4the Partnership, or both.
(b) The Partnership Representative shall promptly deliver Each other Member agrees to each of the other Members a copy of all notices, communications, reports and writings received from the IRS relating to or reasonably expected to result in an adjustment of Company items, and keep each of the Members advised of all material developments with respect to any proposed adjustments which come to its attention; provided, however, that so long as Stagwell or any of its Permitted Transferees is a Member holding at least 30% of the Common Units of the Company, Stagwell shall have the right to observe and participate through representatives of its own choosing (at their sole expense) in any tax proceedings. In respect of any administrative or judicial proceeding with respect to tax periods during which Stagwell owned at least 30% of the Common Units of the Company, furnish the Partnership Representative such information as may be required for the Company to comply with any tax accounting, withholding and reporting obligation, including (but not settle limited to) any such administrative or judicial proceeding or enter into any agreement (including extending the period of limitations) with the IRS, in each case, without the prior written consent of Stagwell, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing herein shall diminish, limit or restrict the rights of any Member under Subchapter C, Chapter 63, Subtitle F obligation to make mandatory basis adjustments to Company property pursuant to Section 754 of the Code.
(c) Each other Member agrees that any action taken by the Partnership Representative in connection with audits by federal or state taxing authorities of the Company in accordance with applicable law shall be binding upon such Member and each such Member further agrees that such Member shall not without notice to the Partnership Representative treat any Company item inconsistently on such Member’s income tax return with the treatment of the item on the Company’s return.
Appears in 1 contract
Samples: Securities Purchase Agreement (Business Development Corp of America)
