Tax Distributions. The Manager(s) may, in his, her, or its sole discretion, to the extent of the Company's Available Cash and as permitted by applicable law and any financing documents, cause the Company to distribute to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1.
Appears in 3 contracts
Samples: Operating Agreement, Operating Agreement, Operating Agreement
Tax Distributions. The Manager(s(i) On or about each date (a “Tax Distribution Date”) that is five (5) Business Days prior to each due date for the U.S. federal income tax return of an individual calendar year taxpayer (without regard to extensions) (or, if earlier, the due date for the U.S. federal income tax return of the Corporation, as determined without regard to extensions), the Company shall be required to make a Distribution to each Member of cash in an amount equal to the excess of such Member’s Assumed Tax Liability, if any, for such taxable period over the Distributions previously made to such Member pursuant to this Section 4.01(b) with respect to such taxable period (the “Tax Distributions”). Notwithstanding the foregoing, the Manager may, in his, her, or its sole discretion, to make such Tax Distributions on a quarterly basis, and any date on which such Tax Distributions are made will be considered a Tax Distribution Date for purposes hereof.
(ii) To the extent a Member otherwise would be entitled to receive less than its Percentage Interest of the Company's Available Cash and as permitted by applicable law and aggregate Tax Distributions to be paid pursuant to this Section 4.01(b) on any financing documentsgiven date, cause the Company Tax Distributions to such Member shall be increased to ensure that all Distributions made pursuant to this Section 4.01(b) are made pro rata in accordance with such Member’s Percentage Interest. If, on a Tax Distribution Date, there are insufficient funds on hand to distribute to the Members amounts the full amount of the Tax Distributions to which such Members are otherwise entitled, Distributions pursuant to this Section 4.01(b) shall be made to the Members to the extent of available funds as follows: first, as such Distributions would have been made if the first sentence of this Section 4.01(b)(ii) did not apply, and then to the Members in accordance with their Percentage Interests, and the Company shall make future Tax Distributions as soon as funds become available sufficient to enable each Member pay the remaining portion of the Tax Distributions to discharge its income tax liability which such Members are otherwise entitled.
(iii) In the event of any audit by, or similar event with, a taxing authority that affects the calculation of any Member’s Assumed Tax Liability for each any taxable year arising as (other than an audit conducted pursuant to the Revised Partnership Audit Provisions for which no election is made pursuant to Section 6226 thereof), or in the event the Company files an amended tax return, each Member’s Assumed Tax Liability with respect to such year shall be recalculated by giving effect to such event (for the avoidance of doubt, taking into account interest or penalties). Any shortfall in the amount of Tax Distributions the Members and former Members received for the relevant taxable years based on such recalculated Assumed Tax Liability promptly shall be distributed to such Members and the successors of such former Members, except, for the avoidance of doubt, to the extent Distributions were made to such Members and former Members pursuant to Section 4.01(a) and this Section 4.01(b) in the relevant taxable years sufficient to cover such shortfall.
(iv) Notwithstanding the foregoing, Distributions pursuant to this Section 4.01(b), if any, shall be made to a result Member (or its predecessor in interest) only to the extent all previous Distributions to such Member pursuant to Section 4.01(a) with respect to the Fiscal Year are less than the Distributions such Member (and its predecessor in interest) otherwise would have been entitled to receive with respect to such Fiscal Year pursuant to this Section 4.01(b).
(v) If the cumulative amount of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. actual federal, state and local income tax ratesliabilities payable by the Corporation, plus the cumulative amount of payments made by the Corporation under the Tax Receivable Agreement, through the end of any particular Tax Distribution Date or calendar year exceeds the sum of the cumulative amount of Tax Distributions, distributions under Section 4.01(a) and Corporation Excess Tax Distributions (as defined below) made to the Corporation through the end of such Tax Distribution Date or calendar year, the Manager shall, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (permitted by applicable Law, but subject to the extent allowed) of state Delaware Act and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated any restrictions contained in any agreement to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from which the Company is each Member's only taxable income or bound, make additional tax lossdistributions to the Corporation in an amount equal to such excess (a “Corporation Excess Tax Distribution”). Any such Corporation Excess Tax Distribution shall be treated as an advance against and, thus, shall reduce (without duplication), any future distributions that would otherwise be made to the Corporation pursuant to Sections 4.01(a) and (iiib).
(vi) Notwithstanding the amount foregoing and character anything to the contrary in this Agreement, a final accounting for tax distributions under the Initial LLC Agreement in respect of the taxable income of the Company for the portion of the Fiscal Year of the Company that ends on the closing date of the IPO shall be made by the Company following the closing date of the IPO and, based on such final accounting, the Company shall make a tax distribution to the Pre-IPO Members (or loss in the case of any Pre-IPO Member that no longer exists, the successor of such Pre-IPO Member) in accordance with the applicable terms of the Initial LLC Agreement to the extent of any shortfall in the amount of tax distributions the Pre-IPO Members received prior to the closing date of the IPO with respect to taxable income of the Company for such portion of such Fiscal Year that will be allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions to the Pre-IPO Members pursuant to Section 4.2.1 in 706 of the order and priority specified thereinCode. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To For the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a)avoidance of doubt, the first distributions that are not amount of the Tax Distribution to be made pursuant to this Section 4.2(e4.01(b)(vi) shall be made so as to cause the aggregate distributions calculated pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1Initial LLC Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (I3 Verticals, Inc.), Limited Liability Company Agreement (I3 Verticals, Inc.)
Tax Distributions. The Manager(s(a) maySubject to the Act, the other provisions of this Agreement, applicable law, and contractual limitations applicable to the Company, as subject to the availabilities of Distributable Cash, the Company shall make a ratable distribution among the Members, in hisaccordance with their respective Company Percentages, herof an aggregate amount in cash sufficient to allow each Member to pay the amount by which (i) the product of (A) a Member’s allocable share of net taxable income of the Company for the Company Year or other relevant period, or its sole discretionand (B) the Tax Rate, exceeds (ii) the sum of the amounts distributed in cash to such Member pursuant to Section 6.1. If there are not sufficient funds on hand to distribute the full amount otherwise required to be distributed pursuant to this Section 6.2(a) such distribution shall be made to the extent of the Company's Available Cash available funds ratably among the Members in proportion to each Member’s respective Company Percentage and as permitted by applicable law and any financing documents, cause the Company shall make future distributions as soon as funds become available to distribute to pay the remaining portion of such distribution ratably among the Members amounts sufficient to enable each Member to discharge its in accordance with their respective Company Percentage.
(b) In computing taxable income tax liability or losses for each taxable year arising as a result the purposes of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) determining the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 6.2, items of income, gain, loss and deduction shall be treated as distributions determined without regard to the Members any adjustments pursuant to Section 4.2.1 in 743, Section 734, or Section 704(c) of the order and priority specified thereinCode. The In the event that the amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To of the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause 6.2 is less than the aggregate excess tax liability of the Members described in the first sentence of Section 6.2(a), any distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e)6.2 shall be made to all the Members in proportion to their respective shares of the excess tax liability. The amounts distributable pursuant to this Section 6.2 shall be calculated and distributed at the following times: (i) quarterly, on an estimated basis, with respect to bethe portion of the Company Year through the end of such quarterly period, as nearly as possibleat least 10 days prior to the date on which U.S. federal corporate estimated tax payments are due and (ii) with respect to each Company Year, in at the ratio required by Section 4.2.1end of such Company Year.
Appears in 2 contracts
Samples: Operating Agreement (GreenSky, Inc.), Operating Agreement (GreenSky, Inc.)
Tax Distributions. (a) Each Member shall be entitled to receive, on the date which is two Business Days prior to each date on which estimated income tax payments are required to be made by an individual calendar year taxpayer and each due date for the income tax return of an individual calendar year taxpayer (each a "Tax Distribution Date"), cumulative cash distributions in an amount equal to such Member's Assumed Tax Liability, if any. The Manager(s"Assumed Tax Liability" of each Member means an amount equal to (i) maythe cumulative amount of federal income taxes (including any applicable estimated taxes), in hisdetermined taking into account the character of income and loss allocated to such Member as it affects the applicable tax rate, herthat the Board estimates would be due from such Member as of such Tax Distribution Date, assuming such Member were an individual that earned solely the items of income, gain, deduction, loss and/or credit allocated to such Member pursuant to Section 9.4 (after reflecting any adjustments thereto by reason of Code Sections 732(d), 734, or its sole discretion743), reduced by (ii) all previous distributions made to such Member pursuant to this Article 8 (other than distributions distributed and reinvested pursuant to Section 8.1(a)).
(b) Distributions under this Section shall be treated as an advance distribution under and shall offset future distributions that such Member would otherwise be entitled to receive pursuant to Section 8.1 or, if not previously offset, Section 13.4.
(c) If on a Tax Distribution Date there are not sufficient funds on hand to distribute to each Member the full amount of such Member's Assumed Tax Liability, distributions pursuant to this Section 8.5 shall be made to the Members to the extent of the Company's Available Cash and as permitted by applicable law and any financing documents, cause the Company available funds in proportion to distribute to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Assumed Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1Liability.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P), Limited Liability Company Agreement (Markwest Energy Partners L P)
Tax Distributions. The Manager(s) maySubject to the Act and to any restrictions contained in any agreement to which the Company is bound, in hisno later than the tenth day of each March, herJune, or its sole discretionSeptember and December, the Company shall, to the extent of available cash, make a tax distribution to each Unitholder in an amount equal to the Company's Available Cash and excess of (i) the product of (A) the cumulative taxable income (including any guaranteed payments for services that are not actually received by such Unitholder in cash) attributable to the Unitholder’s investment as permitted reported on the Unitholder’s Schedule K-1 allocated by applicable law and any financing documents, cause the Company to distribute the Unitholder, in excess of the cumulative taxable loss attributable to the Members amounts sufficient Unitholder’s investment as reported on the Unitholder’s Schedule K-1 allocated by the Company to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of Unitholder and (B) the highest combined effective marginal U.S. maximum federal, state and local marginal income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability rate (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local taxes and adjusted appropriately to take into account the varying rates applicable to capital gains, qualified dividend income taxes for United States federal income tax purposesand ordinary income) applicable to individual residents of New York, New York, over (ii) the amount of cumulative Net Losses previously allocated all prior distributions pursuant to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based 4.4. All distributions made to a Unitholder pursuant to this Section 4.4(c) on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character account of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 Unitholder shall be treated as advance distributions under Section 4.4(a) or Section 5.2 and shall be taken into account in determining the amount of future distributions to such Unitholder. For purposes of determining the Members amount of distributions to be made to the Unitholders pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to 4.4(a) or Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in 5.2, distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e4.4(c) shall be deemed made so at such time as to cause the aggregate they offset distributions being made pursuant to Section 4.2.1, including those made pursuant to this 4.4(a) or Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.15.2.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Michael Foods Inc/New), Limited Liability Company Agreement (Michael Foods Inc/New)
Tax Distributions. The Manager(s) maySubject to the Act and to any restrictions contained in any agreement to which the Company is bound, in hisno later than the tenth day of each March, herJune, or its sole discretionSeptember and December, the Company shall, to the extent of available cash, make a tax distribution to each Unitholder in an amount equal to the Companyexcess of (i) the product of (A) the cumulative taxable income (including any guaranteed payments for services that are not actually received by such Unitholder in cash) attributable to the Unitholder's Available Cash and investment as permitted reported on the Unitholder's Schedule K-1 allocated by applicable law and any financing documents, cause the Company to distribute the Unitholder, in excess of the federal taxable loss carryforward deduction (assuming that such carryforward was not applied against any non-Company income of such Unitholder) to the Members amounts sufficient extent that such loss carry-forward deduction would be available to enable each Member to discharge offset such taxable income of a Unitholder from its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming investment in the applicability to each Member of Company and (B) the highest combined effective marginal U.S. maximum federal, state and local marginal income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability rate (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes and adjusted appropriately for United States federal income tax purposesvarying rates) applicable to individuals, over (ii) the amount of cumulative Net Losses previously allocated all prior distributions pursuant to such Member in prior Fiscal Years and not used in prior Fiscal Years this SECTION 4.4. All distributions made to reduce taxable income for the purpose of making distributions under a Unitholder pursuant to this Section 4.2.5 (based SECTION 4.4(c) on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character account of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 Unitholder shall be treated as advance distributions to the Members pursuant to Section 4.2.1 in the order under SECTION 4.4(a) or SECTION 5.2 and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account in determining the amount of future distributions to such Unitholder. For purposes of determining the amount of distributions to be made to the Unitholders pursuant to this sentence. To the extent this Section 4.2.5 results in SECTION 4.4(a) or SECTION 5.2, distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(eSECTION 4.4(c) shall be deemed made so at such time as to cause the aggregate they offset distributions pursuant to Section 4.2.1, including those being made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1SECTION 4.4(a) or SECTION 5.2.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Mg Waldbaum Co), Limited Liability Company Agreement (Mg Waldbaum Co)
Tax Distributions. The Manager(s) mayNotwithstanding any other provision in this Agreement to the contrary, in his, her, or its sole discretion, except to the extent of the Company's Board in good faith determines the Company has (or would, following such distribution, have) insufficient Available Cash and as permitted by applicable law and any financing documentsCash, the Board shall cause the Company to distribute make cash distributions to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming at least quarterly and no later than five (5) days before the applicability to each Member date specified in Section 6655(c)(2) of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability Code (the "“Tax Distributions"). The ”) in an amount of so that each such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the Member has received an amount of cumulative Net Losses previously allocated equal to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate’s Tax Amount. All Tax Distributions shall be debited against treated as an advance against, and shall reduce dollar-for-dollar, subsequent distributions that otherwise would be made pursuant to this Article IV and Section 9.5(b). If the Company lacks sufficient cash that is available at such Member's Capital Account. Distributions time for distribution to make the full amount of any Tax Distribution (as determined in good faith by the Board in accordance with the first sentence of this Section 4.4), then the Company shall not be required to borrow any money for purposes of making such a Tax Distribution, and the Company shall use commercially reasonable efforts to distribute the amount of cash available on a pro rata basis (according to the amounts that would have been distributed to each Member pursuant to this Section 4.2.5 4.4 if available cash existed in a sufficient amount to make such Tax Distribution in full) and shall be treated as distributions use commercially reasonable efforts to make an additional Tax Distribution, on a pro rata basis (according to the Members pursuant amounts that would have been distributed to Section 4.2.1 in the order and priority specified therein. The amount distributable to any each Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e4.4 if available cash existed in a sufficient amount to make such Tax Distribution in full) out of the first cash available for distribution (as determined in good faith by the Board) in subsequent taxable years to make up for such shortfall. For the avoidance of doubt, no Member shall be made so as entitled to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to any payment under this Section 4.2(e)4.4 (A) in connection with a change of control transaction, liquidity event, sale of the Company, Liquidation Event or similar transaction, or (B) income recognized by any Member with respect to be, as nearly as possible, the issuance or vesting of such Member’s Units or any guaranteed payment in the ratio required respect of services provided by Section 4.2.1such Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Falcon's Beyond Global, Inc.), Limited Liability Company Agreement (Falcon's Beyond Global, Inc.)
Tax Distributions. The Manager(s) may, in his, her, or its sole discretion, to To the extent of the Company's there is Available Cash and therefor, as permitted determined by applicable law and any financing documentsthe Board of Directors, cause the Company to distribute to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result shall make aggregate distributions of its ownership of an Interest, determined by assuming the applicability cash (“Minimum Tax Distributions”) to each Member for the period covering the fiscal year then ended in an amount, which when added to prior distributions made to such Member during such prior fiscal year (excluding therefrom Minimum Tax Distributions received by such Member allocable to the prior taxable year), will equal or exceed the amount of the highest combined effective marginal U.S. federal, state and local income tax ratespayable solely by reason of such Member’s distributive share, within the meaning of Section 704(b) of the Code, of the income, gain, loss and deductions of the Company, assuming for such purposes that (i) any such income and gain reduced by losses and deductions attributable to the extent Member by reason of its interest in the Company is subject to federal, state and local income tax at the maximum rate applicable to any person for the applicable year without reduction for deductions or credits not related to the activities of the Company and (ii) the distributive share of any unused deductions and losses of the Company allocated to a Member in prior taxable years are carried forward. The Board of Directors shall also cause the Company to make distributions otherwise cumulatively made from time to time during a fiscal year of the Company (which shall be treated as an advance of the amounts distributable pursuant to the preceding sentence with respect to the fiscal year) of amounts required by each Member to make payments of estimated taxes for federal, state or payable local income tax purposes. Any amount distributed to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability this Section 5.5 shall be calculated taking into account (i) treated as an advance against and, thus, shall reduce the deductibility (amount which such Member is otherwise entitled to receive thereafter pursuant to Section 5.4 and Section 7.3. If upon termination of a Member’s Interest in the extent allowed) Company or upon the winding up and liquidation of state the Company, a Member shall have received cumulative distributions pursuant to Section 5.4, Section 7.3 and local income taxes for United States federal income tax purposes, (ii) this Section 5.5 in excess of the amount of cumulative Net Losses previously allocated distributions to which such Member in prior Fiscal Years would be entitled under Section 5.4 and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under Section 7.3 (ignoring this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax lossSection 5.5), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) shall promptly repay such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions excess to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carbon Natural Gas Co)
Tax Distributions. The Manager(s) maySubject to the Act and to any restrictions contained in any agreement to which the Company is bound, in hisno later than the tenth day of each March, herJune, or its sole discretionSeptember and December, the Company shall, to the extent of available cash, make a tax distribution to each Unitholder in an amount equal to the Companyexcess of (i) the product of (A) the cumulative taxable income (including any guaranteed payments for services that are not actually received by such Unitholder in cash) attributable to the Unitholder's Available Cash and investment as permitted reported on the Unitholder's Schedule K-1 allocated by applicable law and any financing documents, cause the Company to distribute the Unitholder, in excess of the cumulative taxable loss attributable to the Members amounts sufficient Unitholder's investment as reported on the Unitholder's Schedule K-1 allocated by the Company to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of Unitholder and (B) the highest combined effective marginal U.S. maximum federal, state and local marginal income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability rate (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local taxes and adjusted appropriately to take into account the varying rates applicable to capital gains, qualified dividend income taxes for United States federal income tax purposesand ordinary income) applicable to individual residents of New York, New York, over (ii) the amount of cumulative Net Losses previously allocated all prior distributions pursuant to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based 4.4. All distributions made to a Unitholder pursuant to this Section 4.4(c) on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character account of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 Unitholder shall be treated as advance distributions under Section 4.4(a) or Section 5.2 and shall be taken into account in determining the amount of future distributions to such Unitholder. For purposes of determining the Members amount of distributions to be made to the Unitholders pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to 4.4(a) or Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in 5.2, distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e4.4(c) shall be deemed made so at such time as to cause the aggregate they offset distributions being made pursuant to Section 4.2.1, including those made pursuant to this 4.4(a) or Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.15.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Michael Foods Inc/New)
Tax Distributions. The Manager(s) maySubject to the Act and to any restrictions contained in any agreement to which the Company is bound and notwithstanding the provisions of Section 4.4(a), in hisno later than the tenth day of each March, herJune, or its sole discretionSeptember and December, the Company shall, to the extent of available cash, make a tax distribution to each Unitholder in an amount equal to the Company's Available Cash and excess of (i) the product of (A) the cumulative taxable income (including any guaranteed payments for services that are not actually received by such Unitholder in cash) attributable to the Unitholder’s investment as permitted reported on the Unitholder’s Schedule K-1 allocated by applicable law and any financing documents, cause the Company to distribute the Unitholder, in excess of the federal taxable loss carryforward deduction arising from such Unitholder’s investment in the Company (assuming that such carryforward was not applied against any non-Company income of such Unitholder) to the Members amounts sufficient extent that such loss carry forward deduction would be available to enable each Member to discharge offset such taxable income of a Unitholder from its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming investment in the applicability to each Member of Company and (B) the highest combined effective marginal U.S. maximum federal, state and local marginal income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability rate (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes and adjusted appropriately for United States federal income tax purposesvarying rates) applicable to individuals, over (ii) the amount of cumulative Net Losses previously allocated all prior distributions pursuant to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based 4.4. All distributions made to a Unitholder pursuant to this Section 4.4(c) on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character account of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 Unitholder shall be treated as advance distributions under Section 4.4(a) or Section 5.2 and shall be taken into account in determining the amount of future distributions to such Unitholder. For purposes of determining the Members amount of distributions to be made to the Unitholders pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to 4.4(a) or Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in 5.2, distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e4.4(c) shall be deemed made so at such time as to cause the aggregate they offset distributions being made pursuant to Section 4.2.1, including those made pursuant to this 4.4(a) or Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.15.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Birds Eye Foods, Inc.)
Tax Distributions. The Manager(s) may, in his, her, or its sole discretion, to the extent of the Company's Available Cash and as As permitted by applicable law and subject to any financing documentsapplicable restrictions in loan documents with the Company’s creditors, cause the Company shall use its best efforts to distribute to each Member within one hundred and eight (180) days after the Members amounts end of each Fiscal Year such part of its distributable profits as shall represent in cash an amount sufficient to enable each Member to discharge its income any foreign and local tax liability for each such taxable year (excluding penalties) arising as a result of its ownership of an Interesta Share, determined by assuming the applicability to each Member Share of the highest combined effective marginal U.S. federalFederal, state and local income tax rates, rates for any individual actually obligated to report on any tax returns income derived from the Company. To the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 3.2(b) are insufficient to cover such tax liability (liabilities, the "Tax Distributions"Company shall make cash distributions in amounts, that when added to the cash distributions otherwise payable pursuant to Section 3.2(b), shall equal such tax liability. The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state foreign and local income taxes for United States federal income tax purposestaxes, (ii) the amount of net cumulative Net Losses tax loss previously allocated to such Member (and such Member's predecessor's) in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 3.1 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), and (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 3.1 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein3.2(b). The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in Any distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made 3.1 are subject to the reasonably required needs of the Company, as determined by the Directors, to maintain sufficient funds for working capital and other business purposes so as not to cause impair the aggregate distributions pursuant ability of the Company to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1continue its business operations.
Appears in 1 contract
Samples: Joint Venture Agreement (Clean Coal Technologies Inc.)
Tax Distributions. The Manager(s(a) maySubject to the Act, the other provisions of this Agreement, applicable law, and contractual limitations applicable to the Company, as subject to the availabilities of Distributable Cash, the Company shall make a ratable distribution among the Members, in hisaccordance with their respective Company Percentages, herof an aggregate amount in cash sufficient to allow each Member to pay the amount by which (i) the product of (A) a Member’s allocable share of net taxable income of the Company for the Company Year or other relevant period, or its sole discretionand (B) the Tax Rate, exceeds (ii) the sum of the amounts distributed in cash to such Member pursuant to Section 6.1. If there are not sufficient funds on hand to distribute the full amount otherwise required to be distributed pursuant to this Section 6.2(a) such distribution shall be made to the extent of the Company's Available Cash available funds ratably among the Members in proportion to each Member’s respective Company Percentage and as permitted by applicable law and any financing documents, cause the Company shall make future distributions as soon as funds become available to distribute to pay the remaining portion of such distribution ratably among the Members amounts sufficient to enable each Member to discharge its in accordance with their respective Company Percentage.
(b) In computing taxable income tax liability or losses for each taxable year arising as a result the purposes of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) determining the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 6.2, items of income, gain, loss and deduction shall be treated as distributions determined without regard to the Members any adjustments pursuant to Section 4.2.1 in 743, Section 734, or Section 704(c) of the order and priority specified thereinCode. The In the event that the amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To of the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause 6.2 is less than the aggregate excess tax liability of the Members, any distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e)6.2 shall be made to all the Members in proportion to their respective shares of the excess tax liability. The amounts distributable pursuant to this Section 6.2 shall be calculated and distributed at the following times: (i) quarterly, on an estimated basis, with respect to bethe portion of the Company Year through the end of such quarterly period, as nearly as possibleat least 10 days prior to the date on which U.S. federal corporate estimated tax payments are due and (ii) with respect to each Company Year, in at the ratio required by Section 4.2.1end of such Company Year.
Appears in 1 contract
Samples: Operating Agreement (GreenSky, Inc.)
Tax Distributions. The Manager(s(a) mayWith respect to each Fiscal Year or portion thereof ending after the closing date of the IPO, in his, her, or its sole discretionthe Manager shall, to the extent of the Company's Available Cash and as permitted by applicable law and any financing documentsLaw, cause the Company to distribute make cash distributions to the Members amounts sufficient holder of Series A Preferred Units in a manner consistent with the principles of Section 4.1(b) (“Preferred Tax Distributions”), with the following changes: (x) the “Distribution Tax Rate” used in determining the Preferred Tax Distributions shall be a rate equal to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. combined federal, state and local income tax ratesrate applicable to corporate taxpayers resident in California, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account the character of the relevant tax items (ie.g., ordinary or capital) and the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposespurposes (but only to the extent such taxes are deductible under the Code), as reasonably determined by the Manager, (iiy) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Preferred Tax Distributions shall be debited against such Member's Capital Account. calculated solely by reference to items of income, gain, deduction or loss attributable to the Series A Preferred Units and (z) the provisions of Section 4.1(b)(ii) shall not apply.
(b) The provisions of Section 4.1(b) shall apply mutatis mutandi to Preferred Tax Distributions pursuant and the holder of Series A Preferred Units, other than clause (ii) of Section 4.1(b), which shall not be applicable to Preferred Tax Distributions.
(c) In the event the Company does not have sufficient Distributable Cash to make distributions under both Section 4.1(b) and this Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a3.12(c)(v), the first distributions that are not made pursuant amount of cash able to this Section 4.2(e) be paid shall be made so as paid on a pro rata basis to cause holders of the aggregate distributions pursuant Series A Preferred Units and the Common Units, based on the relative amounts each is entitled to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1receive.
Appears in 1 contract
Samples: Limited Liability Company Agreement (AmeriHome, Inc.)
Tax Distributions. The Manager(s) mayOn or before April 15th of each Fiscal Year, in his, her, or its sole discretion, the Company shall distribute to each Person who was a Member during the extent immediately preceding Fiscal Year of the Company's Available Cash and as permitted Company an amount of cash (the “Tax Distribution Limitation Amount”) equal to forty percent (40%) (such rate to be subject to one or more equitable adjustments by the Board in the event of any changes in the applicable law and any financing documents, cause the Company to distribute to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. federal, state and local income federal tax rates, to the extent distributions otherwise cumulatively made or payable to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability ) of (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (ia) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the total amount of cumulative Net Losses previously taxable income and gain allocated to such Member for federal income tax purposes in the Company income tax return filed or to be filed with respect to such Fiscal Year and prior Fiscal Years Years, over (b) the total cumulative amount of losses, deductions and not used credits allocated to such Member for federal income tax purposes in the Company’s income tax return filed or to be filed with respect to such Fiscal Year and prior Fiscal Years Years, reduced by any prior distributions pursuant to reduce taxable income for this Section 5.4 with respect to such Fiscal Year and prior Fiscal Years. Notwithstanding the purpose foregoing, no distribution shall be made or required under this Section 5.4 with respect to any Fiscal Year to any Member in excess of making the Tax Distribution Limitation Amount. In the discretion of the Board, distributions under this Section 4.2.5 5.4 may be made on an estimated basis each quarter and if such estimated distributions exceed the actual amount required on April 15th, such Member receiving excess distributions shall be given a credit balance and such excess shall be deducted from such Member’s next distribution(s) under this Section 5.4 (based on until fully repaid). No distribution under this Section 5.4 shall be made if the assumption that taxable income making of such distribution would constitute a violation of the Act or taxable loss from any other applicable law or regulation or order of any court of competent jurisdiction or any contract or agreement by which the Company is bound. Distributions made under this Section 5.4 shall be credited to each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to Member as if such Member or arising In respect of its Interest, and (iv) had received such other reasonable assumptions as the Manager(s) determines distribution in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this accordance with Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a5.3(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.1.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Viamet Pharmaceuticals Holdings LLC)
Tax Distributions. The Manager(s) mayPrior to making any distributions under Section 6.1, in his, her, or the Board shall use its sole discretion, best efforts to the extent of the Company's Available Cash and as permitted by applicable law and any financing documents, cause the Company to distribute make quarterly cash distributions (each, a “Tax Distribution”) no later than fifteen (15) days prior to the Members amounts sufficient quarterly payment deadline for U.S. federal income taxes for corporations (with the first Tax Distribution after the Effective Date to enable occur no later than November 30, 2019). The Tax Distribution to each Member shall be in an amount equal to discharge its the excess of (a) the Assumed Tax Rate multiplied by the taxable income tax liability allocated (or estimated to be allocated) by the Company to such Member in respect of such Fiscal Year (excluding, for each taxable year arising the avoidance of doubt, any income allocated as a result of its ownership any guaranteed payments in respect of an Interestservices, and determined by assuming the applicability taking into account any taxable losses or deductions from prior periods allocated to each such Member of the highest combined effective marginal U.S. federal, state and local income tax rates, (or such Member’s predecessor in interest) to the extent not taken into account as a reduction in taxable income hereunder in prior periods) and determined without taking into account any special basis adjustment with respect to such Member pursuant to Section 743(b) of the Code or special allocations under Section 704(c) of the Code) over (b) the sum (with duplication) of all other amounts previously distributed to such Member in the Fiscal Year in which the taxable income arose (excluding distributions otherwise cumulatively made to the Members constituting a return of capital) and any Tax Distributions previously made to such Member for all periods. If the aggregate Tax Distributions made to a Member in respect to any Fiscal Year based on estimated allocations of taxable income is greater or payable lesser than the Tax Distributions due to such Member for such Fiscal Year pursuant to this provision, as finally determined, appropriate adjustments shall be made to the amounts of the next subsequent Tax Distributions due to such Member or, if necessary, distributions due to such Member pursuant to Section 6.1. The amount distributed to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 6.2 shall be treated as an advance against future distributions payable to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any such Member pursuant to (or by reason of) Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.16.1.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Green Plains Inc.)
Tax Distributions. The Manager(s) may, in his, her, or its sole discretionPrior to the making of any other distributions hereunder, to the extent the Company has cash available to it, and after setting aside appropriate reserves, the Company shall distribute to each Member, not later than ninety (90) days after the end of each fiscal year of the Company's Available Cash and as permitted by applicable law and any financing documents, cause the Company to distribute to the Members amounts cash in an amount that would be sufficient to enable each permit such Member to discharge its pay the Theoretical Tax on the amount of taxable income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability allocated to each Member of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a such Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes Article III hereof for United States federal income tax purposes, without regard to the individual tax status of any Member, but after giving effect to (iix) the amount of cumulative Net Losses income and losses previously allocated by the Company to such Member in fiscal years prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on fiscal year with respect to which the assumption that taxable income or taxable loss from the Company calculation is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interestmade, and (ivy) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as any distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) 4.1. Each such distribution shall be referred to in this Agreement as a "Tax Distribution." A Tax Distribution shall be deemed to have been made on the last day of the pertinent fiscal year, and taken into account in determining allocations with respect to such fiscal year, notwithstanding that such Tax Distribution is made in the following fiscal year. If the Company does not have sufficient cash available to it to make the full Tax Distribution owing to each Member for a fiscal year, the Tax Distributions for such fiscal year shall be made so as pro rata to cause the aggregate distributions pursuant Members in proportion to Section 4.2.1the Tax Distributions owing to each Member for such fiscal year. Notwithstanding anything herein to the contrary, including those made pursuant ASC may waive its right to receive all or a portion of any Tax Distributions required to be distributed to ASC under this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.14.1.
Appears in 1 contract
Samples: Limited Liability Company Agreement (American Seafoods Inc)
Tax Distributions. The Manager(s) may, in his, her, or its sole discretion, to To the extent that funds of the Company are permitted to be distributed under Applicable Law and the provisions of any agreement or instrument governing Indebtedness that is then-binding upon the Company's Available Cash and as permitted by applicable law and any financing documents, the Managing Member shall cause the Company to distribute to the Members amounts sufficient to enable each Member on or before the tenth (10th) day prior to discharge its income tax liability the due date of federal estimated taxes for each taxable year arising as individuals, an amount of cash (a result of its ownership of an Interest, determined by assuming “Tax Distribution”) which in the applicability to each Member good faith judgment of the highest combined effective marginal U.S. federal, state and local income tax rates, to the extent distributions otherwise cumulatively made or payable to a Managing Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking into account equals (i) the deductibility aggregate amount of taxable income (determined without regard to any tax consequences to such Member under Code Sections 734 or 743) of the Company allocable to such Member in respect of such relevant period for federal estimated tax payment (for the avoidance of doubt, including income or gain allocations to the extent allowed) of state Member made under Code Section 704(c)), and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative taking into account any Net Losses previously Loss allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified therein. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any Tax Distributions made to such Member all prior relevant periods and not previously taken into account pursuant under this clause, multiplied by (ii) the Assumed Tax Rate. In calculating the amount of any Tax Distribution payment, the Managing Member may rely on estimated or projected information and may make adjustments to subsequent Tax Distributions to reflect deviations between actual results and estimated or projected results. Notwithstanding anything to the contrary in this sentence. To Agreement, (i) Tax Distributions shall not be treated as advances against, and shall not reduce, the extent Members’ entitlements to Distributions under Section 6.1(a), this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a6.2(b), Section 6.2(c) and Section 11.1, (ii) no Tax Distribution shall be made with respect to any income or gain arising in respect of any Sale of the first distributions that are not made Company and (iii) the Company shall have no obligation to borrow funds or incur Indebtedness to fund any Tax Distribution. No Member shall be liable to the Company for any amount distributed to it pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e6.2(b), to be, as nearly as possible, in the ratio required by Section 4.2.1or for any interest on such amount.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Hiro Systems PBC)
Tax Distributions. The Manager(s) may, Notwithstanding anything to the contrary in his, her, or its sole discretionSection 5.1, to the extent funds of the Company may be legally available for Distribution by the Company under the Act and subject to any Financing Agreement and subject to the retention and establishment of reserves, or payment to third parties, of such funds as the Board deems necessary with respect to the reasonable business needs and obligations of the Company's Available Cash and as permitted by applicable law and any financing documents, the Board shall cause the Company to distribute make Distributions of cash (any such amount, a “Tax Distribution”) to the Members in amounts sufficient intended to enable each Member the Members (or any Person whose tax liability is determined by reference to the income of a Member) to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of the highest combined effective marginal U.S. their United States federal, state and local income tax ratesliabilities arising from the allocations made pursuant to this ARTICLE V, to taking into account, for the extent distributions otherwise cumulatively made or payable avoidance of doubt, any taxable loss of the Company allocated to a Member pursuant to Section 4.2.1 are insufficient to cover such tax liability (the "Tax Distributions"). The amount of such tax liability shall be calculated taking this Agreement for any prior taxable year not previously taken into account (i) the deductibility (for purposes of this Section 5.2, to the extent allowedsuch losses would be available under the Code to offset income of the Members (or, as appropriate, the direct or indirect partners or members of a Member) of state determined as if income and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each were the only income and loss of such Member (or, as appropriate, the direct or indirect partners or members of such Member's only taxable income or tax loss) in such Fiscal Year and all prior Fiscal Years. For purposes of determining Tax Distributions under this Section 5.2, unless otherwise determined by the Board (in its sole discretion), (iiisuch determinations shall be made taking into account any allocations arising under Code Section 704(c) or adjustments arising from an election under Code Section 754. The amount distributable pursuant to this Section 5.2 shall be determined in the amount Board’s discretion, based on the Maximum Tax Rate and character of the taxable income or loss amounts allocated to such Member or arising In respect of its Interestthe Members, and (iv) otherwise based on such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant to this Section 4.2.5 shall be treated as distributions to the Members pursuant to Section 4.2.1 in the order and priority specified thereinBoard determines. The amount distributable to any Member pursuant to Section 4.2(a) 5.1 shall not be reduced by any Tax Distributions made the amount distributed to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, in the ratio required by Section 4.2.15.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Priority Technology Holdings, Inc.)
Tax Distributions. (a) During each Fiscal Year or within forty-five (45) days after the end thereof, the Company shall make distributions to each Member pro rata in accordance with their respective Units in an aggregate amount equal to the Annual Target Tax Distribution. The Manager(s“Annual Target Tax Distribution” shall mean the product of (i) may, the excess of the Company’s total taxable income allocable to the Members in his, her, or its sole discretion, respect of such Fiscal Year over taxable losses allocated to the Members in prior Fiscal Years to the extent of the Company's Available Cash such losses have not previously been taken into account to reduce taxable income pursuant to this provision (ignoring partner level Section 754 adjustments except as described in subparagraph (c) below), and as permitted by applicable law and any financing documents, cause the Company to distribute to the Members amounts sufficient to enable each Member to discharge its income tax liability for each taxable year arising as a result of its ownership of an Interest, determined by assuming the applicability to each Member of (ii) the highest maximum combined effective marginal U.S. federal, state and local income tax ratesrates generally applicable to an individual resident (or, to the extent distributions otherwise cumulatively made or payable to if higher, a Member corporation resident) in New York City, New York may be subject. Amounts distributed pursuant to this Section 4.2.1 are insufficient 5.2 shall be referred to cover such tax liability (the "as “Tax Distributions"). The amount of such tax liability shall be calculated taking into account (i) the deductibility (to the extent allowed) of state and local income taxes for United States federal income tax purposes, (ii) the amount of cumulative Net Losses previously allocated to such Member in prior Fiscal Years and not used in prior Fiscal Years to reduce taxable income for the purpose of making distributions under this Section 4.2.5 (based on the assumption that taxable income or taxable loss from the Company is each Member's only taxable income or tax loss), (iii) the amount and character of the taxable income or loss allocated to such Member or arising In respect of its Interest, and (iv) such other reasonable assumptions as the Manager(s) determines in good faith to be appropriate. .” Tax Distributions shall be debited against such Member's Capital Account. Distributions pursuant estimated by the Tax Matters Member on a quarterly basis and to this Section 4.2.5 the extent feasible shall be treated as distributions distributed to the Members pursuant on a quarterly basis to Section 4.2.1 in facilitate the order and priority specified thereinpayment of estimated taxes by the Members or their beneficial owners. The amount distributable to any Member pursuant to Section 4.2(a) shall be reduced by any A final accounting for Tax Distributions made to such Member and not previously taken into account pursuant to this sentence. To the extent this Section 4.2.5 results in distributions other than in the ratio required by Section 4.2(a), the first distributions that are not made pursuant to this Section 4.2(e) shall be made so as to cause for each taxable year after the aggregate distributions pursuant to Section 4.2.1, including those made pursuant to this Section 4.2(e), to be, as nearly as possible, Company’s actual taxable income has been determined and (i) any shortfall in the ratio required by Section 4.2.1amount of Tax Distributions the Members received for such taxable year based on such final determination shall promptly be distributed to such Members, and (ii) any excess in the amount of Tax Distributions the Members received for such taxable year shall be applied against the subsequent Tax Distributions due to such Members.
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