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Common use of Tax Distributions Clause in Contracts

Tax Distributions. (a) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Cullinan Oncology, LLC)

Tax Distributions. (ai) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.025.03 to the contrary, to the extent permitted by Applicable Law and consistent with the Company’s obligations to its creditors as reasonably determined by the Managing Member, the Company shall make cash distributions by wire transfer of immediately available funds pursuant to this Section 5.03(e)(i) to the Members with respect to their Units in proportion to their respective Percentage Interests at least two Business Days prior to and the date on which any U.S. federal corporate estimated tax payments are due, in preference over any distributions pursuant an amount that in the Managing Member’s discretion allows each Member to Section 8.01satisfy its tax liability with respect to its Units, the Company, at the sole discretion of the Board of Directors, shall distribute up to such Member’s Tax Distribution Amount, at least seven if any; provided that the Managing Member shall have no liability to any Member in connection with any underpayment of estimated taxes, so long as cash distributions are made in accordance with this Section 5.03(e)(i) and the Tax Distribution Amounts are determined as provided in paragraph (7i) days prior of the definition of Tax Distribution Amount. (ii) On any date that the Company makes a distribution to the estimated tax payment due date for Members with respect to their Units under a provision of Section 5.03 other than this Section 5.03(e), if the Tax Distribution Amount is greater than zero, the Company shall designate all or a portion of such fiscal quarter, an amount of cash equal distribution as a Tax Distribution with respect to a Member’s Units to the amounts estimated by extent of the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member Distribution Amount with respect to such Member’s allocable share Units as of such date (but not to exceed the amount of such distribution). For the avoidance of doubt, such designation shall be performed with respect to all Members with respect to which there is a Tax Distribution Amount as of such date. (iii) Notwithstanding any other provision of this Section 5.03 to the contrary, if the Tax Distribution Amount for such Fiscal Year is greater than zero, to the extent permitted by Applicable Law and consistent with the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal obligations to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, its creditors as reasonably determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Managing Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital make additional distributions under this Section 707(c5.03(e)(iii) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, extent of such Tax Distributions pursuant to this Section 8.02(a) shall be treated Distribution Amount for such Fiscal Year as advances soon as reasonably practicable after the end of such Fiscal Year (or as soon as reasonably practicable after any event that subsequently adjusts the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to taxable income of such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (iiFiscal Year), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (biv) To the extent that (i) the sum of all Under no circumstances shall Tax Distributions distributed reduce the amount otherwise distributable to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed 5.03 (iiother than this Section 5.03(e)) such Member’s after taking into account the effect of Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect Distributions on the amount of the immediately succeeding Fiscal Year cash or other assets available for purposes of determining distribution by the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

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

Tax Distributions. (a) At least three (3) weeks prior to Within 45 days after the end of any fiscal each quarter of the taxable year of the Company, and (i) assuming (A) the Company, at Company has taxable income for such quarter of the sole discretion of taxable year and (B) the Company has sufficient working capital (as determined by the Board of Directors), after taking into account payments contemplated by the budget approved by the Board of Directors to make the distributions contemplated hereby, and (ii) subject to limitations on such distributions contained in any credit facility or other agreement to which the Company or any Subsidiary is a party, cash distributions shall deliver be made to each Member a statement setting forth in the positive amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company equal to such Member Member's tax liability arising solely in respect of its ownership of a Membership Interest for federal such quarter (which tax liability, for the purposes of this Section 6.3, shall be calculated to equal the product of (1) such Member's share of the Company's taxable income tax purposes with respect to for such fiscal quarter, as estimated by the Board Company (including for such purpose such Member's share of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02separately stated items), and prior (2) the combined maximum federal and applicable state income tax rates applicable to and individual taxpayers in preference over any distributions pursuant to Section 8.01the State of Colorado for such quarter, taking into account, if applicable, the Company, at the sole discretion deduction of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income taxes for federal income tax liability (purposes and whether any portion of such liability, a “Tax Liability”) that would be incurred by such Member with respect taxable income qualifies for the reduced rates applicable to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”long term capital gains). In calculating the amount of each Tax DistributionNotwithstanding Section 6.8, the Company shall assume that each Member’s Tax Liability if a Member is equal allocated losses or deductions pursuant to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share Section 6.5 during any quarter of the taxable income of the Company (as reducedyear, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income losses or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) deductions shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, carried forward and shall reduce or offset amounts otherwise distributable pursuant the taxable income (as calculated in Section 6.5) of such Member in each succeeding quarter, until such allocated losses have been reduced to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicablezero. (b) To The aggregate amount of distributions made by the extent that (i) the sum of all Tax Distributions distributed Company to any a Member pursuant to Section 6.3(a) (as reduced pursuant to the other provisions of this Section 8.02 with respect to a Fiscal Year exceed (ii6.3) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of deemed the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise."

Appears in 1 contract

Samples: Limited Liability Company Agreement (Antero Resources Finance Corp)

Tax Distributions. The Managing Member shall (a) At least three (3) weeks prior solely to the end extent of any fiscal quarter of Available Cash) cause the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) no later than five days prior to the date on which U.S. federal corporate quarterly estimated tax payment payments are due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation a taxpayer with the Officers and its tax and accounting advisorsa taxable year ending on December 31, to represent the assumed federal, state and local income tax liability make a distribution (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, excess of (xA) the product of (i) the estimated net taxable income allocable to such Member’s Tax Liability with respect to , for such Fiscal Year minus taxable year through the end of such period, and (yii) the sum of all other Assumed Income Tax Distributions distributed Rate, over (B) distributions previously made to such Member pursuant to this Section 8.02 5.03 or Section 12.02 with respect to the taxable year. A final accounting for Tax Distributions shall be made after the allocation of the Company’s actual net taxable income or loss has been determined for a taxable year (or applicable portion thereof) and any shortfall in the amount of Tax Distributions a Member received for such Fiscal Yeartaxable year based on such final accounting shall, to the extent of Available Cash, be promptly distributed to such Member. For In computing taxable income or loss for purposes of calculating this Section 5.03(e), items of income, gain, loss and deduction shall be determined (i) with or without regard to any adjustments pursuant to Section 743 of the Tax Liability Code (in whole or in part), in the sole discretion of a the Managing Member, the Company shall take and (ii) taking into account any allocations under Section 704(c) of income or gain the Code and the Treasury Regulations thereunder. A Tax Distribution to a Member with in respect of any LLC Unit shall be charged against current or future distributions to any accrued dividend which such Member would otherwise have been entitled under this Section 5.03 or other amount properly treated as Section 12.02 in respect of such Unit; provided, however, all LLC Units shall participate in distributions made pursuant to Section 5.03 on a guaranteed payment for capital under Section 707(c) of the Codepro rata basis. Notwithstanding the foregoing, (A) any distributions made pursuant to this Section 5.03(e) shall be made to the Members on a pro rata basis in accordance with the number of each Member’s LLC Units over the total number of outstanding LLC Units, (B) to the extent of Available Cash, the pro rata amount to be distributed to each Member shall be calculated based on the distribution to the Member that would have the highest Tax Distributions Distribution under this Section 5.03(e) on a per-unit basis, calculated without regard to this sentence and (C) if there is insufficient Available Cash to make all of the distributions described in clause (B), the amount that would have been distributed to each Member pursuant to clause (B) shall be reduced on a pro rata basis; and provided, further, that notwithstanding the foregoing the Company shall not be available required to a Member make any distribution pursuant to this Section 5.03(e) with respect to any guaranteed payment for services under Section 707(c) of Corresponding Company Units or other Units that have not vested if the Code or Company has not allocated any other payment for services to a Member not income in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made applicable taxable period to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of whether a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether distribution is treated as a result of an audit Tax Distribution or a distribution pursuant to Section 5.03(b) is not intended to impact allocations or ultimate economic entitlement under this Agreement, and assessment by a taxing authority or otherwise.this Agreement shall be interpreted consistent with such intent. WEIL:\98074461\9\40590.0003

Appears in 1 contract

Samples: Limited Liability Company Agreement (Definitive Healthcare Corp.)

Tax Distributions. (a) At least three (3) weeks prior to Unless otherwise provided by the end of any fiscal quarter of the CompanyManaging Member, the Company, at the sole discretion of the Board of Directors, Company shall deliver to each Member a statement setting forth the amount of income and gain (and, solely to the extent reasonably practicableof available cash), each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) no later than five days prior to the date on which U.S. federal corporate estimated tax payment payments are due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation a taxpayer with the Officers and its tax and accounting advisorsa taxable year ending on December 31, to represent the assumed federal, state and local income tax liability make a distribution (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, excess of (xA) the product of (i) the estimated net taxable income allocable to such Member’s Tax Liability with respect to , for such Fiscal Year minus taxable year through the end of such period, and (yii) the sum of all other Tax Distributions distributed Rate, over (B) distributions previously made to such Member pursuant to this Section 8.02 5.03 or Section 12.02 with respect to the taxable year. If such Fiscal Yearquarterly Tax Distributions are, in the aggregate, less than the amount of Tax Distributions to which such Member is entitled pursuant to this Section 5.03(e), the Managing Member shall (solely to the extent of any available cash) cause the Company to make an annual Tax Distribution to each Member no later than 10 days prior to the due date for U.S. federal income tax returns for individuals (excluding any extensions) for such taxable year sufficient to make up such shortfall. For In computing taxable income or loss for purposes of calculating this Section 5.03(e), items of income, gain, loss and deduction shall be determined (i) with or without regard to any adjustments pursuant to Section 743 of the Tax Liability Code (in whole or in part), in the sole discretion of a the Managing Member, the Company shall take and (ii) taking into account any allocations under Section 704(c) of income or gain the Code and the Treasury Regulations thereunder. A Tax Distribution to a Member with in respect of any Unit shall be charged against current or future distributions to which such Member would otherwise have been entitled under this Section 5.03 or Section 12.02 in respect of such Unit to the extent required to prevent Tax Distributions from permanently impacting the distributions to the Members; provided, however, all Common Units (including any accrued dividend Common Unit or other amount properly treated as portion thereof received in exchange for any Profits Unit) shall participate in distributions made pursuant to Section 5.03 on a guaranteed payment for capital under Section 707(c) of the Codepro rata basis. Notwithstanding the foregoing, (A) any distributions made pursuant to this Section 5.03(e) shall be made to the Members on a pro rata basis in accordance with the number of each Member’s Units over the total number of outstanding Units, (B) to the extent of available cash, the pro rata amount to be distributed to each Member shall be calculated based on the distribution to the Member that would have the highest Tax Distributions Distribution under this Section 5.03(e) on a per-Unit basis, calculated without regard to this sentence and (C) if there is insufficient available cash to make all of the distributions described in clause (B), the amount that would have been distributed to each Member pursuant to clause (B) shall be reduced on a pro rata basis; and provided, further, that notwithstanding the foregoing the Company shall not be available required to a Member make any distribution pursuant to this Section 5.03(e) with respect to any guaranteed payment for services under Section 707(c) of Profits Units that are not Vested Units if the Code or Company has not allocated any other payment for services to a Member not income in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made applicable taxable period to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of whether a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether distribution is treated as a result of an audit Tax Distribution or a distribution pursuant to Section 5.03(b) is not intended to impact allocations or ultimate economic entitlement under this Agreement, and assessment by a taxing authority or otherwisethis Agreement shall be interpreted consistent with such intent.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Weber Inc.)

Tax Distributions. If the amounts distributed to the Members pursuant to Section 5.1(a) of this Agreement during a calendar year as of each Tax Distribution Date with respect to such calendar year are less than the amount that would be distributed pursuant to this Section 5.2, then on each Tax Distribution Date, the Company shall, subject to the availability of funds and to any restrictions contained in any agreement to which the Company is bound, make distributions: (a) At least three (3) weeks prior to PubCo in an amount equal to all of PubCo’s Assumed Tax Liability attributable to the end of any fiscal quarter estimated or actual taxable income of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member as determined for federal income tax purposes purposes, allocated to PubCo pursuant to Article IV with respect to such fiscal quarter, as estimated by its Preferred Units during the Board of DirectorsFiscal Year or other taxable period to which the tax-related distribution under this Section 5.2 relates; (b) to the Members on a pro rata basis, in consultation accordance with the Officers and tax and accounting advisors. Notwithstanding any number of Common Units owned by each Member in an amount sufficient to cause PubCo to receive an aggregate distribution with respect to its Common Units equal to PubCo’s remaining Assumed Tax Liability (after the distribution under Section 5.2(a)) during the Fiscal Year or other provision of taxable period to which the tax-related distribution under this Section 8.025.2 relates; provided, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior that to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, extent that any Member has received a “Tax Liability”distribution under Section 5.2(c) that would be incurred by such Member with respect to such Member’s allocable share of Common Units that has not been fully offset against amounts otherwise distributable to such Member under this Agreement, the Company’s taxable net income for amount distributable to such quarter (any such distribution, and any other distribution Member under this Section 8.02, a “5.2(b) on any Tax Distribution”). In calculating Distribution Date shall be reduced by the amount lesser of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in product of (x) the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excessamount, if any, of (xconstituting a Section 704(c) such Member’s Tax Liability with respect to such Fiscal Year minus Excess Amount multiplied by (y) the sum number of all other Tax Distributions distributed Common Units then held by such Member; and (ii) the remaining amount per Common Unit, if any, previously advanced to such Member pursuant to under this Section 8.02 5.2(b) and not previously offset against amounts otherwise distributable to such Member under this Section 5.2; and (c) upon any Member other than PubCo’s request, to such Member in an amount sufficient to cause such Member to receive an aggregate distribution with respect to its Common Units equal to such Fiscal Year. For purposes of calculating the Member’s Section 704(c) Tax Liability to the extent no prior distribution in respect of a Membersuch Section 704(c) Tax Liability has been made under this Section 5.2(c); provided that any distribution under this clause (c) shall be considered an advance distribution to be offset against any later Section 704(c) Excess Amount in accordance with the proviso to Section 5.2(b) or, to the Company shall take into account extent not previously recovered, against any allocations of income other distribution or gain to a Member amount payable with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal YearCommon Units under Section 5.1(a), such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this 5.3 or Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise10.2(b)(iii).

Appears in 1 contract

Samples: Limited Liability Company Agreement (Stagwell Inc)

Tax Distributions. In order to permit Members (a) At least three (3) weeks prior to and in the end case of any fiscal quarter of the CompanyMember that is a partnership, S corporation or other flow-through entity for federal tax purposes, the Company, at the sole discretion beneficial owners of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed pay federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member taxes on taxable income of the Company allocated to the Members with respect to such Member’s allocable share of the Company’s a taxable net year (including taxable income for such quarter (any such distribution, allocated to a Member pursuant to Section 704(c) and any other distribution under this Regulations Section 8.02, a “Tax Distribution”1.704-1(b)(4)(x). In calculating the amount of each Tax Distribution), the Company shall assume that shall, to the extent of Available Cash, make quarterly distributions to each Member’s Tax Liability is Member in an amount equal to the product of (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board excess of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (iix) such Member’s allocable share of the taxable income of the Company allocated (as reducedor in the Board’s good faith determination, but not below zeroestimated to be allocated) to such Member for such taxable year, by any prior over (y) the cumulative net loss taxable losses of the Company, if any, theretofore allocated to such Member that was from the Effective Date through the end of such taxable year and not previously applied for purposes of this Section 4.5, and (ii) the Assumed Tax Rate. For the avoidance of any doubt, any basis adjustments pursuant to Section 743(b) with respect to assets allocable to a Member shall be taken into account for purposes of determining the Tax Distributions. Notwithstanding anything to the contrary in this Agreement, no distribution under this sentence). The Tax Rate may Section 4.5 shall be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability made with respect to such Fiscal Year minus any payment to a Member that is treated as a “guaranteed payment” under Section 707(c) of the Code and Walgreens and its Affiliates (yother than, for the avoidance of doubt, any Blocker) the sum shall be treated collectively as a single Member for purposes of all other determining Tax Distributions under this Section 4.5.All distributions made pursuant to this Section 4.5 shall be referred to as “Tax Distributions.” The “Assumed Tax Rate” shall be (A) forty-five percent (45%) (or, as determined by the Board, the maximum combined U.S. Federal, New York state and New York City tax rate applicable to individuals) with respect to any Member other than a Member that is either (1) a corporation for U.S. federal income tax purposes or (2) a pass-through entity for U.S. federal income tax purposes all of whose equity owners are corporations for U.S. federal income tax purposes, and (B) thirty-seven percent (37%) (or, as determined by the Board, the maximum combined U.S. Federal, New York state and New York City tax rate applicable to corporations) with respect to any Member that is a corporation for U.S. federal income tax purposes or a pass-through entity for U.S. federal income tax purposes all of whose equity owners are corporations for U.S. federal income tax purposes. Tax Distributions made to a Member pursuant to this Section 4.5 (which with respect to any transferee Member shall include, for purposes of this Section 4.5, Tax Distributions made to its transferor Member with respect to the transferred interest) shall be treated as advances against, and shall reduce the amounts otherwise distributable to such Member pursuant to Section 4.6(b) and Sections 4.7(b) and 4.7(c), but shall not be treated as advances against distributions due to such Member pursuant to Sections 4.6(a) and 4.7(a). Amounts distributed to any Member pursuant to Section 4.6(b) during such taxable year (but, excluding, for the avoidance of doubt, any amounts distributed to any Member as a result of a redemption of any Units held by such Member and any amounts treated as a Tax Distribution for a previous taxable year) shall reduce Tax Distributions for such taxable year due to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years4.5. For the avoidance of doubt, no Tax Distributions will be made in connection with a Liquidation Transaction. If the Company shall have insufficient Available Cash to distribute required Tax Distributions, then the Company shall make such distributions pro rata in proportion to the amount of Tax Distribution each such Member is otherwise entitled to receive hereunder. Available Cash which thereafter becomes available for distribution shall be distributed pro rata in accordance with the Tax Distributions to which the Members are entitled until such deficiency is remedied. To the extent that amounts distributed to a Member pursuant to this Section 8.02(b4.5 with respect to a taxable year exceed the amount that such Member would be entitled to receive pursuant to this Section 4.5 with respect to such taxable year based on the taxable income or loss of the Company as finally determined for such taxable year, subsequent distributions (including subsequent distributions pursuant to this Section 4.5) shall apply in be adjusted so as to reverse, as quickly as possible, the event effects of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwisesuch excess distribution.

Appears in 1 contract

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

Tax Distributions. (aNotwithstanding anything in Section 5.1(a)(i) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (andcontrary, to the extent reasonably practicableof any Distributable Cash, each item thereof) expected subject to any restrictions that may be allocated imposed by any creditor of the Company or applicable Law and less reserves the Principal Member shall cause the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven make a Distribution (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates the holders of income tax applicable to certain kinds of income for individuals. In additionUnits, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, of (A) the product of (I) the Principal Member’s estimate of the amount of taxable income that will be allocated to the applicable Member pursuant to Section 4.3 for the entire Tax Year (but including for this purpose any allocations under Section 704(c) of the Code and disregarding (x) such Member’s Tax Liability with respect any adjustments pursuant to such Fiscal Year minus Section 734 or 743 of the Code, and (y) the sum of all other Tax Distributions distributed any guaranteed payment to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under pursuant to Section 707(a) of the Code), which shall be determined by the Principal Member in its reasonable discretion and (II) the Distribution Tax Rate, over (B) the aggregate amount of all prior distributions paid to such Member in respect of its Units under this Section 5.1 during such Tax Year (including any Tax Distribution paid under this Section 5.1(a)(iv) during such Tax Year). Notwithstanding anything herein The Principal Member shall have the right in its sole discretion to the contrary, (1) adjust subsequent Tax Distributions up or down to reflect any variation between estimated quarterly Tax Distributions and the Tax Distribution that would have been computed under this Section 5.1(a)(iv) based on subsequent tax information, and (2) otherwise adjust the amount of Tax Distributions made under this Section 5.1(a)(iv) consistent with the purposes of this provision, which is to provide the Members, with sufficient liquidity to fund their tax liabilities incurred as a result of taxable income allocable with respect to their ownership of Units. Each Distribution pursuant to this Section 8.02(a5.1(a)(iv) shall be treated made to the Persons shown on the Company's books and records as advances holders of Units as of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to date of such MemberTax Distribution; provided that, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, nothing in this Section 8.02(b5.1(a)(iv) shall apply in the event require that Tax Distributions be made to Members on a pro rata basis. The amount of any Tax Distributions made to a redetermination Member shall be offset against future distributions which such Member is entitled to receive under this Agreement (including pursuant to a liquidation of the Tax Liability of Company). Neither the Company nor the Principal Member shall have any liability to a Member after the close for penalties or interest arising from non-payment or incorrect estimates of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwisesuch Member’s Tax Distributions.

Appears in 1 contract

Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)

Tax Distributions. (a) At least three (3) weeks prior to Unless otherwise provided by the end of any fiscal quarter of the CompanyManaging Member, the Company, at the sole discretion of the Board of Directors, Company shall deliver to each Member a statement setting forth the amount of income and gain (and, solely to the extent reasonably practicableof available cash), each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) no later than five days prior to the date on which U.S. federal corporate estimated tax payment payments are due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation a taxpayer with the Officers and its tax and accounting advisorsa taxable year ending on December 31, to represent the assumed federal, state and local income tax liability make a distribution (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, excess of (xA) the product of (i) the estimated net taxable income allocable to such Member’s Tax Liability with respect to , for such Fiscal Year minus taxable year through the end of such period, and (yii) the sum of all other Tax Distributions distributed Rate, over (B) distributions previously made to such Member pursuant to this Section 8.02 5.03 or Section 12.02 with respect to the taxable year. If such Fiscal Yearquarterly Tax Distributions are, in the aggregate, less than the amount of Tax Distributions to which such Member is entitled pursuant to this Section 5.03(e), the Managing Member shall (solely to the extent of any available cash) cause the Company to make an annual Tax Distribution to each Member no later than 10 days prior to the due date for U.S. federal income tax returns for individuals (excluding any extensions) for such taxable year sufficient to make up such shortfall. For In computing taxable income or loss for purposes of calculating this Section 5.03(e), items of income, gain, loss and deduction shall be determined (i) with or without regard to any adjustments pursuant to Section 743 of the Tax Liability Code (in whole or in part), in the sole discretion of a the Managing Member, the Company shall take and (ii) taking into account any allocations under Section 704(c) of income or gain the Code and the Treasury Regulations thereunder. A Tax Distribution to a Member with in respect of any Unit shall be charged against current or future distributions to which such Member would otherwise have been entitled under this Section 5.03 or Section 12.02 in respect of such Unit; provided, however, all Common Units (including any accrued dividend Common Unit or other amount properly treated as portion thereof received in exchange for any Profits Unit) shall participate in distributions made pursuant to Section 5.03 on a guaranteed payment for capital under Section 707(c) of the Codepro rata basis. Notwithstanding the foregoing, (A) any distributions made pursuant to this Section 5.03(e) shall be made to the Members on a pro rata basis in accordance with the number of each Member’s Units over the total number of outstanding Units, (B) to the extent of available cash, the pro rata amount to be distributed to each Member shall be calculated based on the distribution to the Member that would have the highest Tax Distributions Distribution under this Section 5.03(e) on a per-Unit basis, calculated without regard to this sentence and (C) if there is insufficient available cash to make all of the distributions described in clause (B), the amount that would have been distributed to each Member pursuant to clause (B) shall be reduced on a pro rata basis; and provided, further, that notwithstanding the foregoing the Company shall not be available required to a Member make any distribution pursuant to this Section 5.03(e) with respect to any guaranteed payment for services under Section 707(c) of Profits Units that are not Vested Units if the Code or Company has not allocated any other payment for services to a Member not income in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made applicable taxable period to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of whether a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether distribution is treated as a result of an audit Tax Distribution or a distribution pursuant to Section 5.03(b) is not intended to impact allocations or ultimate economic entitlement under this Agreement, and assessment by a taxing authority or otherwisethis Agreement shall be interpreted consistent with such intent.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Weber Inc.)

Tax Distributions. (a) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units, Series B Preferred Units and/or Series B C Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Cullinan Oncology, LLC)

Tax Distributions. (ai) At least three (3) weeks prior to Notwithstanding Section 9.1(a), within 90 days after the end of any fiscal quarter each taxable year of the Company, and (A) assuming (1) the CompanyCompany has taxable income for such taxable year and (2) the Company has sufficient working capital (as reasonably determined by the Board), at after taking into account payments contemplated by the sole discretion of then-current Initial Strategic Plan or Annual Plan, to make the Board of Directorsdistributions contemplated hereby, and (B) subject to limitations on such distributions contained in any credit facility or other agreement to which the Company is a party, cash distributions shall deliver be made to each Member in the positive amount equal to the difference between X and Y, where: “X” is the sum of (I) such Member’s tax liability arising solely in respect of its ownership of a statement setting forth Member Interest for such taxable year (which tax liability, for the amount purposes of this Section 9.1(d), shall be calculated to equal the product of (1) such Member’s share of the Company’s taxable income for such taxable year, as reflected in such Member’s K-1 from the Company for such taxable year (including for such purpose such Member’s share of any separately stated items such as depletion and gain or loss from the sale of oil and gas property), multiplied by (and2) the combined maximum federal and applicable state and local income tax rates applicable to individual taxpayers in New York, New York, taking into account, if applicable, the deduction of state and local income taxes for federal income tax purposes and whether any portion of such taxable income qualifies for the reduced rates applicable to long term capital gains), plus (II) the extent reasonably practicable, each item thereofsum of all tax liabilities of such Member (calculated as provided in (I)) expected to be allocated for all prior taxable years since the formation of the Company; and “Y” is the sum of all distributions made by the Company to such Member for federal income tax purposes with respect pursuant to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers Section 9.1(a) and tax and accounting advisors. Notwithstanding any other provision of this Section 8.029.1(d) as of the end of the taxable year for which the calculation in “X”(I) is being made since the formation of the Company. (ii) Notwithstanding Section 9.1(d)(i), if a Member is allocated net losses or net deductions pursuant to Section 9.2 during any taxable year, such net losses or net deductions shall be carried forward and prior shall reduce the taxable income (as calculated in Section 9.1(d)(i)) of such Member in succeeding taxable years, until such allocated net losses and net deductions have been reduced to and in preference over any zero. (iii) The Company shall make an additional distribution (the “Tax True-up Distribution”) to the Members who received distributions pursuant to this Section 8.01, 9.1(d) to the Company, at minimum extent required in order that the sole discretion aggregate amounts distributed to each such Member (or the successor to all or a portion of the Board of Directors, shall distribute to such Member, at least seven (7’s Membership Interest) days prior pursuant to this Section 9.1(d) for the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, relevant period is pro rata in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect proportion to such Member’s allocable share of Percentage Interest, as in effect during the Company’s taxable net income for such quarter relevant period. (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the iv) The aggregate amount of each Tax Distributiondistributions made by the Company to a Member pursuant to Section 9.1(d)(i) shall be deemed the “Advance Amount”. If the Board authorizes a distribution to the Members pursuant to Section 9.1(a) and at such time a Member’s Advance Amount is positive, (A) the Company shall assume that each Member’s Tax Liability is equal be entitled to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) withhold such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated distribution up to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of Advance Amount (xwith such Advance Amount being reduced by the amount so withheld) such Member’s Tax Liability with respect to such Fiscal Year minus and (yB) the sum Company shall be entitled to distribute such withheld amount to the Members (after also applying clause (A) to those Members having positive Advance Amounts) so that, to the maximum extent possible, each Member shall have received the amount of all other Tax Distributions distributed distributions that such Member would have received since formation of the Company if no distributions had been made under this Section 9.1(d). (v) If, upon dissolution of the Company, any Member has a positive Advance Amount, such Member shall make a Capital Contribution to such the Company in an amount equal to the Advance Amount. Any Capital Contribution made by a Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a9.1(d)(v) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions distributed to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to in such a manner so that each Member has received the amount of distributions that such Member would have received since the formation of the Company if no distributions had been made under this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii9.1(d), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Riviera Resources, LLC)

Tax Distributions. (a) At least In the event that there is net taxable income allocated from the Company to a Member for a Fiscal Year, then the Company shall, within three (3) weeks prior to months after the end of any fiscal quarter of the Companysuch Fiscal Year, the Company, at the sole discretion of the Board of Directors, shall deliver make a Distribution pursuant to this Section 8.16(a) to each Member a statement setting forth in the minimum amount necessary to meet the following requirements: (i) all Distributions under this Section 8.16(a) shall be made in proportion to each Member's Sharing Ratio; and (ii) the total amount of income Distributions to each Member pursuant to this Section 8.16(a) and gain Sections 8.4 and 8.16(b) of this Agreement during, or with respect to, the Relevant Distribution Period (and, excluding any Distributions made pursuant to this Section 8.16(a) with respect to a prior Fiscal Year or pursuant to Section 8.16(b) with respect to a future Fiscal Year) shall be at least equal to the extent reasonably practicable, each item thereofproduct of (i) expected to be allocated by the net taxable income allocable from the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarterFiscal Year (without regard to any adjustments made under Code Sections 734, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”743 or 754), multiplied by (ii) such the Assumed Tax Rate; provided, however, that no Distribution shall be made pursuant to this Section 8.16(a) (w) to the extent that it would cause a Member’s allocable share of the taxable income of the Company 's Capital Account (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken after taking into account under this sentence). The Tax Rate may estimated Profits and Losses and Distributions through the latest calendar quarter) to be adjusted negative, (x) if such Distribution is then prohibited by the Board Company's debt instruments, (y) in an amount which in the aggregate exceed Distributable Cash, or (z) would otherwise be imprudent. (b) The Company shall, on or before each of Directors (provided that April 15th, June 15th, September 15th of any Fiscal Year and January 15th immediately following the same percentage shall apply to each Member) to account for preferential rates closing of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each such Fiscal Year, make Distributions to Members of one-fourth of the Company shall distribute amount estimated to each Member an amount equal be distributable pursuant to the excess, if any, Section 8.16(a) of (x) such Member’s Tax Liability with this Agreement in respect to of such Fiscal Year minus Year. Such estimated amounts shall be included in the Company's operating budget. (yc) Any Distribution which is made to a Member pursuant to Section 8.16(a) or (b) of this Agreement shall reduce the sum total amount of all other Tax Distributions distributed which such Member would otherwise be entitled to receive under Section 8.4 of this Agreement until the total amount of such reductions made pursuant to this Section 8.16(c) equals the cumulative amount of Distributions made to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c8.16(a) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwiseAgreement.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Macquarie Infrastructure Assets Trust)

Tax Distributions. (a) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (andNotwithstanding Section 5.1(a), to the extent reasonably practicable, each item thereof) expected to funds of the Company may be allocated available for distribution by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors Manager in consultation with its tax and accounting advisors (the “Tax Rate”sole discretion), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated with respect to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount of cash (a “Tax Distribution”) equal to (i) the aggregate taxable income of the Company for the Fiscal Year allocated under this Agreement with respect to the Units held by such Member (with taxable income reflecting, without limitation, adjustments under Sections 704(c), 734 and 743 of the Code and net of taxable losses of the Company allocated in respect of prior Fiscal Years and not previously taken into account under this clause), multiplied by (ii) the Applicable Tax Rate; provided, however, unless otherwise determined by the Manager in its sole discretion, the amount of the Tax Distribution distributable to the Corporation shall not be less than an amount that will enable the Corporation to satisfy its tax obligations and its obligations pursuant to the Tax Receivable Agreement (in each case as determined by the Manager in its sole discretion) for the relevant Fiscal Year (subject to sufficient funds available for distribution); provided further, that the amount of Tax Distributions made with respect to the Units (which, for the avoidance of doubt, includes the amount that will enable the Corporation to satisfy its obligations pursuant to the Tax Receivable Agreement, if applicable) shall be the same for every Unit and shall be equal to the excesshighest amount that any Member would otherwise be entitled to receive on a per Unit basis under this Section 5.1(b). The Company shall, if anysubject to the availability of cash, make advance distributions to the Members of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other their respective Tax Distributions distributed on a quarterly basis based upon estimates of the required Tax Distributions in a manner sufficient to permit the Members to apply such Member pursuant advances toward their quarterly estimated tax payment obligations. If the Manager determines there are insufficient funds available to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating pay the Tax Liability of a MemberDistributions in full, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, then Tax Distributions shall be made to each Member on a pro rata basis, with each Unit receiving the same amount on a per Unit basis. To the extent that any holders of Units have not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, received Tax Distributions pursuant to in full under this Section 8.02(a) 5.1(b), such unpaid amounts shall carryforward and shall be distributed in future periods as Tax Distributions under this Section. Tax Distributions shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made any amounts holders of Units are entitled to such Member, and shall reduce or offset amounts otherwise distributable receive pursuant to Section 8.01(b)(iii)-(vi5.1(a) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. Article X. For the avoidance of doubt, unless the Manager specifies that a distribution is not a Tax Distribution pursuant to this Section 8.02(b) 5.1(b), each Distribution with respect to a Unit shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether be treated as a result of an audit and assessment by a taxing authority or otherwiseTax Distribution.

Appears in 1 contract

Samples: Transaction Agreement and Plan of Merger (Sentinel Energy Services Inc.)

Tax Distributions. The Managing Member shall (a) At least three (3) weeks prior solely to the end extent of any fiscal quarter of Available Cash) cause the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) no later than five days prior to the date on which U.S. federal corporate quarterly estimated tax payment payments are due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation a taxpayer with the Officers and its tax and accounting advisorsa taxable year ending on December 31, to represent the assumed federal, state and local income tax liability make a distribution (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, excess of (xA) the product of (i) the estimated net taxable income allocable to such Member’s Tax Liability with respect to , for such Fiscal Year minus taxable year through the end of such period, and (yii) the sum of all other Assumed Income Tax Distributions distributed Rate, over (B) distributions previously made to such Member pursuant to this Section 8.02 5.03 or Section 12.02 with respect to the taxable year. A final accounting for Tax Distributions shall be made after the allocation of the Company’s actual net taxable income or loss has been determined for a taxable year (or applicable portion thereof) and any shortfall in the amount of Tax Distributions a Member received for such Fiscal Yeartaxable year based on such final accounting shall, to the extent of Available Cash, be promptly distributed to such Member. For In computing taxable income or loss for purposes of calculating this Section 5.03(e), items of income, gain, loss and deduction shall be determined (i) with or without regard to any adjustments pursuant to Section 743 of the Tax Liability Code (in whole or in part), in the sole discretion of a the Managing Member, the Company shall take and (ii) taking into account any allocations under Section 704(c) of income or gain the Code and the Treasury Regulations thereunder. A Tax Distribution to a Member with in respect of any LLC Unit shall be charged against current or future distributions to any accrued dividend which such Member would otherwise have been entitled under this Section 5.03 or other amount properly treated as Section 12.02 in respect of such Unit; provided, however, all LLC Units shall participate in distributions made pursuant to Section 5.03 on a guaranteed payment for capital under Section 707(c) of the Codepro rata basis. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to (A) any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions distributions made pursuant to this Section 8.02(a5.03(e) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred on a pro rata basis in accordance with the number of each Member’s LLC Units over the total number of outstanding LLC Units, Series A Preferred Units and/or Series B Preferred Units pursuant (B) to the extent of Available Cash, the pro rata amount to be distributed to each Member shall be calculated based on the distribution to the Member that would have the highest Tax Distribution under this Section 5.03(e) on a per-unit basis, calculated without regard to this Section 8.02(asentence and (C) shall not be treated as advances if there is insufficient Available Cash to make all of Distributions under Section 8.01(b)(i) or the distributions described in clause (iiB), as applicable, the amount that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions have been distributed to any each Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed clause (iiB) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered reduced on a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Yearspro rata basis. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of whether a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether distribution is treated as a result of an audit Tax Distribution or a distribution pursuant to Section 5.03(b) is not intended to impact allocations or ultimate economic entitlement under this Agreement, and assessment by a taxing authority or otherwisethis Agreement shall be interpreted consistent with such intent.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Portillo's Inc.)

Tax Distributions. (a) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of DirectorsManager, shall deliver the Company may make cash distributions to the Members in amounts designed to enable each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect pay taxes attributable to such Member’s allocable share of the Company’s taxable net income for (such quarter (any such distributiontaxes, and any other distribution under this Section 8.02, a the Tax DistributionApplicable Taxes”). In calculating the The amount distributable to each Member in respect of each Tax DistributionApplicable Taxes, the Company if any, for any tax payment date (including any estimated tax payment date) shall assume that each Member’s Tax Liability is be equal to the excess of: (i) the highest combined marginal federal, state and local income product of (x) the assumed tax rate of forty-five percent (45%) (or such other rate as the Manager may determine in its sole discretion from time to time to be the maximum net aggregate effective tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), any Member) multiplied by (iiy) the net amount (or estimated net amount) of taxable income allocated by the Company to such Member for the period taken into account for purposes of making such Member’s scheduled tax payment and all prior periods in respect of the same Fiscal Year (reduced by such Member’s allocable share of taxable losses from all prior periods to the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was extent not previously taken into account under pursuant to this sentenceclause (i). The Tax Rate may be adjusted by the Board of Directors ), over (provided that the same percentage shall apply to each Memberii) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety all previous distributions (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed made to such Member pursuant to this Section 8.02 with 7.1(h)(i) or pursuant to Section 7.1(h)(ii) in respect to of such Fiscal Yearfiscal year (as determined by the Manager). For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a7.1(h)(i) (A) shall be treated as advances against amounts otherwise distributable to the Members to whom such distributions were made for purposes of Sections 7.1(h)(ii) and (iii) (in the first Distributions under Section 8.01(b)(iii)-(viorder in which such amounts would have otherwise been distributable) that would otherwise be made to such Member, and shall reduce or offset the amounts that would subsequently otherwise be distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units for all purposes under this Agreement and (B) shall be made only to the extent that all previous distributions from the Company in respect of a fiscal year (as determined by the Manager) to such Member are not sufficient to pay such Member’s Applicable Taxes for such fiscal year. No distributions pursuant to this Section 8.02(a7.1(h)(i) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of connection with a redetermination liquidation or dissolution of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwiseCompany pursuant to Article IX.

Appears in 1 contract

Samples: Operating Agreement

Tax Distributions. In order to permit Members (a) At least three (3) weeks prior to and in the end case of any fiscal quarter of the CompanyMember that is a partnership, S corporation or other flow-through entity for federal tax purposes, the Company, at the sole discretion beneficial owners of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed pay federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member taxes on taxable income of the Company allocated to the Members with respect to such Member’s allocable share a taxable year (including taxable income allocated to a Member pursuant to Section 704(c) of the Company’s taxable net income for such quarter (any such distribution, Code and any other distribution under this Regulations Section 8.02, a “Tax Distribution”1.704-1(b)(4)(x). In calculating the amount of each Tax Distribution), the Company shall assume that shall, to the extent of Available Cash, make quarterly distributions to each Member’s Tax Liability is Member in an amount equal to the product of (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board excess of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (iix) such Member’s allocable share of the taxable income of the Company allocated (as reducedor in the Board’s good faith determination, but not below zeroestimated to be allocated) to such Member for such taxable year, by any prior net loss over (y) the cumulative taxable losses of the Company, if any, theretofore allocated to such Member that was from the Effective Date through the end of such taxable year and not previously applied for purposes of this Section 4.5, and (ii) the Assumed Tax Rate. For the avoidance of any doubt, any basis adjustments pursuant to Section 743(b) of the Code with respect to assets allocable to a Member shall be taken into account for purposes of determining the Tax Distributions. Notwithstanding anything to the contrary in this Agreement, no distribution under this sentence). The Tax Rate may Section 4.5 shall be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability made with respect to such Fiscal Year minus any payment to a Member that is treated as a “guaranteed payment” under Section 707(c) of the Code and Walgreens and its Affiliates (yother than, for the avoidance of doubt, any Blocker) the sum shall be treated collectively as a single Member for purposes of all other determining Tax Distributions under this Section 4.5. All distributions made pursuant to this Section 4.5 shall be referred to as “Tax Distributions.” The “Assumed Tax Rate” shall be (A) as determined by the Board, the maximum combined U.S. Federal, state and local tax rate applicable to individuals in the state with the highest combined rates in which any individual Member resides with respect to any Member other than a Member that is either (1) a corporation for U.S. federal income tax purposes or (2) a pass-through entity for U.S. federal income tax purposes all of whose equity owners are corporations for U.S. federal income tax purposes, and (B) thirty-seven percent (37%) (or, as determined by the Board, the maximum combined U.S. Federal, New York state and New York City tax rate applicable to corporations) with respect to any Member that is a corporation for U.S. federal income tax purposes or a pass-through entity for U.S. federal income tax purposes all of whose equity owners are corporations for U.S. federal income tax purposes. Tax Distributions made to a Member pursuant to this Section 4.5 (which, with respect to any transferee Member shall include, for purposes of this Section 4.5, Tax Distributions made to its transferor Member with respect to the transferred interest and, which shall include Tax Distributions made to a Member under the Prior VPMC Operating Agreement) shall be treated as advances against, and shall reduce the amounts otherwise distributable to such Member pursuant to Section 4.6(b) and Sections 4.7(b) and 4.7(c), but shall not be treated as advances against distributions due to such Member pursuant to Sections 4.6(a) and 4.7(a). Amounts distributed to any Member pursuant to Section 4.6(b) during such taxable year (but, excluding, for the avoidance of doubt, any amounts distributed to any Member as a result of a redemption of any Units held by such Member and any amounts treated as a Tax Distribution for a previous taxable year) shall reduce Tax Distributions for such taxable year due to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years4.5. For the avoidance of doubt, no Tax Distributions will be made in connection with a Liquidation Transaction. If the Company shall have insufficient Available Cash to distribute required Tax Distributions, then the Company shall make such distributions pro rata in proportion to the amount of Tax Distribution each such Member is otherwise entitled to receive hereunder. Available Cash which thereafter becomes available for distribution shall be distributed pro rata in accordance with the Tax Distributions to which the Members are entitled until such deficiency is remedied. To the extent that amounts distributed to a Member pursuant to this Section 8.02(b4.5 with respect to a taxable year exceed the amount that such Member would be entitled to receive pursuant to this Section 4.5 with respect to such taxable year based on the taxable income or loss of the Company as finally determined for such taxable year, subsequent distributions (including subsequent distributions pursuant to this Section 4.5) shall apply in be adjusted so as to reverse, as quickly as possible, the event effects of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwisesuch excess distribution.

Appears in 1 contract

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

Tax Distributions. (a) At least three (3) weeks prior Notwithstanding any to the end contrary herein, the Company will distribute to each Member, to the extent of any fiscal quarter available cash, with respect to each taxable year of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain no less than ninety (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (790) days prior to following the estimated tax payment due date for such fiscal quarterend of each Fiscal Year, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to excess of: (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in product of (x) the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the net taxable income of the Company (as reduced, but not below zero, by any prior net loss or gain allocated to such Member that was not previously taken for the taxable year of the Company, if any (excluding partner-level taxable income adjustments made under Code section 743(b), but taking into account the partner-level deduction permitted by Code section 199A), and (y) the highest effective marginal combined U.S. federal and state income tax (if applicable) rate (including, for the avoidance of doubt, any taxes imposed under this sentence). The Tax Rate may be adjusted by section 1411 of the Board Code) for the taxable year in question with respect to items of Directors (provided that the same percentage shall apply character as the net taxable income or gain allocated to each Member) to such Member (computed by taking into account the deductibility of state income taxes for preferential rates of U.S. federal income tax applicable purposes and any limitations thereon) over (ii) any other distributions received by such Member in respect of such taxable year; provided, that such calculation will not take into account items of taxable income or loss allocated to certain kinds a Member pursuant to sections 704(c) or 737 of income for individualsthe Code. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall If there is not sufficient available cash to distribute to each Member an the full amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to due under this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member6.2, then the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, will make Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances 6.2 to the Members pro rata in accordance with such Members’ respective amounts due under this Section 6.2. All Tax Distributions will reduce the amount of the first Distributions under Section 8.01(b)(iii)-(vi) current or next succeeding distribution or distributions that would have otherwise been made to each Member, or if such distributions are not sufficient for that purpose, reduce the proceeds of liquidation otherwise payable to such Member. Tax Distributions shall be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions the Members on an estimated basis at the end of each calendar quarter to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances extent of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicableavailable cash. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Applied Blockchain, Inc.)

Tax Distributions. Provided any payments due pursuant to Section 5.4 (aSpecial Payments to Members) At least three (3) weeks prior have been paid in full, and notwithstanding anything in this Article V to the end contrary (other than Section 5.1 (Legal Restrictions on Distributions; Withholding)), with respect to any taxable year in which the Company does not liquidate or sell all or substantially all of any fiscal quarter its assets, the Executive Committee shall distribute to each Member available cash (which available cash will be determined after taking into account the Company’s reasonable working capital needs and reserves set aside pursuant to Section 5.2 (Current Reserves), but not the reserves set aside pursuant to Section 5.3(Growth Reserves)) in an amount equal to the highest combined federal and state marginal tax rate applicable to either Member or to the LSC Owners on income that is ultimately allocated to them from LSC (as determined by the Executive Committee after consultation with the Members) multiplied by the amount of net taxable income allocable to such Member from the Company for such taxable year pursuant to Article IV(Allocations of Profits and Losses), to enable the Members to pay the taxes owed by the Members with respect to the net taxable income allocable to them from the Company. Distributions made pursuant to this Section 5.5 shall be taken into account as an advance payment of distributions for purposes of Section 5.6 (Amount and Time of Distributions) and Section 11.3(b)(v) (Dissolution Distributions). Any payment not paid when due and payable in accordance with the terms of this Section 5.5 shall accrue to the benefit of the CompanyMember which is entitled to such payment, the Companyand any amounts accrued hereunder shall be paid as soon as possible when, at subject to Section 5.1 (Legal Restrictions on Distributions; Withholding), in the sole discretion of the Board of DirectorsExecutive Committee, shall deliver to each Member a statement setting forth sufficient cash is available (which available cash will be determined after taking into account the amount of income Company’s reasonable working capital needs and gain (and, to the extent reasonably practicable, each item thereof) expected to be allocated by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions reserves set aside pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven 5.2 (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”Current Reserves). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable reserves set aside pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or 5.3 (iiGrowth Reserves), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Calavo Growers Inc)

Tax Distributions. (aNotwithstanding anything in Section 5.1(a)(i) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (andcontrary, to the extent reasonably practicableof any Distributable Cash, each item thereof) expected subject to any restrictions that may be allocated imposed by any creditor of the Company or applicable Law and less reserves, the Principal Member shall cause the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven make a Distribution (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to (i) the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates the holders of income tax applicable to certain kinds of income for individuals. In additionUnits, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member in an amount equal to the excess, if any, of (A) the product of (I) the Principal Member’s estimate of the amount of taxable income that will be allocated to the applicable Member pursuant to Section 4.3 for the entire Tax Year (but including for this purpose any allocations under Section 704(c) of the Code and disregarding (x) such Member’s Tax Liability with respect any adjustments pursuant to such Fiscal Year minus Section 734 or 743 of the Code, and (y) the sum of all other Tax Distributions distributed any guaranteed payment to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under pursuant to Section 707(a) of the Code), which shall be determined by the Principal Member in its reasonable discretion and (II) the Distribution Tax Rate, over (B) the aggregate amount of all prior distributions paid to such Member in respect of its Units under this Section 5.1 during such Tax Year (including any Tax Distribution paid under this Section 5.1(a)(iv) during such Tax Year). Notwithstanding anything herein The Principal Member shall have the right in its sole discretion to the contrary, (1) adjust subsequent Tax Distributions up or down to reflect any variation between estimated quarterly Tax Distributions and the Tax Distribution that would have been computed under this Section 5.1(a)(iv) based on subsequent tax information, and (2) otherwise adjust the amount of Tax Distributions made under this Section 5.1(a)(iv) consistent with the purposes of this provision, which is to provide the Members, with sufficient liquidity to fund their tax liabilities incurred as a result of taxable income allocable with respect to their ownership of Units. Each Distribution pursuant to this Section 8.02(a5.1(a)(iv) shall be treated made to the Persons shown on the Company's books and records as advances holders of Units as of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to date of such MemberTax Distribution; provided that, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, nothing in this Section 8.02(b5.1(a)(iv) shall apply in the event require that Tax Distributions be made to Members on a pro rata basis. The amount of any Tax Distributions made to a redetermination Member shall be offset against future distributions which such Member is entitled to receive under this Agreement (including pursuant to a liquidation of the Tax Liability of Company). Neither the Company nor the Principal Member shall have any liability to a Member after the close for penalties or interest arising from non-payment or incorrect estimates of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwisesuch Member’s Tax Distributions.

Appears in 1 contract

Samples: Limited Liability Company Agreement (TELUS International (Cda) Inc.)

Tax Distributions. (a) At least three To enable the Members (3or their direct or indirect beneficial owners) weeks prior to pay taxes on income of the Company or its subsidiaries that is taxable to the end of any fiscal quarter of the CompanyMembers (or such owners), the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (and, Company must make cash distributions to the extent reasonably practicableMembers, during each item thereof) expected to be allocated by Fiscal Year, pro rata among the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven Members based on their Percentage Interests (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02each, a “Tax Distribution”). In calculating the , in an aggregate amount of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is equal to the greater of (i) the minimum amount necessary so that the Parent Corporation Group receives, in the aggregate, at least an amount equal to its Assumed Tax Liability for the Fiscal Year or (ii) the minimum amount necessary so that each Non-Blocker Member receives at least an amount equal to the product of (1) the highest combined marginal aggregate rate of federal, state, and local income tax imposed on the Company’s income for that Fiscal Year applicable to an individual or corporation resident in New Jersey, whichever is higher (taking into account the deductibility of state and local income tax rate applicable taxes for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local federal income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”purposes), multiplied by (ii2) such Member’s allocable share the amount of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Non-Blocker Member for that was not previously taken into account under this sentenceFiscal Year (including income includible with respect to the Company or any of the Company’s subsidiaries by such Member or any of its direct or indirect beneficial owners by reason of Section 951, 951A or 956 of the Code or otherwise pursuant to subpart F of Part III of the Code and income recognized by such Non-Blocker Member (or any of its direct or indirect beneficial owners) with respect to any guaranteed payment in respect of services that is paid in property other than cash, but excluding income recognized by such Non-Blocker Member (or any of its direct or indirect beneficial owners) with respect to the issuance or vesting of such Member’s Units or any guaranteed payment in respect of services that is paid in cash). The Tax Rate may be adjusted by ; provided, however, that to the Board extent there is a Redemption or Termination Transaction Redemption of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates any Common Units of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each a Member during such Fiscal Year, the Company appropriate adjustments shall distribute to each Member an amount equal be made (subject to the excessprior written consent of the applicable Member, if anywhich consent shall not be unreasonably withheld, conditioned or delayed) to the minimum amount of the Tax Distribution that would otherwise need to be made to such Member pursuant to clause (xii) above to take into account the reduction in such Member’s Common Units and the amount of cash and/or Class A Shares received in such Redemption or Termination Transaction Redemption that can be utilized to pay Taxes with respect to which a Tax Liability Distribution otherwise would have been made, such that the decrease in such Member’s Membership Interest during the Fiscal Year does not distort the amount of Tax Distributions made with respect to each Common Unit held by the other Members. Tax Distributions must be paid at least quarterly during each Fiscal Year at times that coincide with the Members’ payment of estimated taxes, and the amount of each distribution will be based upon the anticipated taxable income of the Company for the Fiscal Year of the distribution and the anticipated amount of payments under the Tax Receivable Agreement for the Fiscal Year of the distribution. Unless otherwise provided herein, all Tax Distributions to a Member hereunder shall be considered an advance of Distributions otherwise payable to such Member. For purposes of determining whether sufficient Tax Distributions have been made pursuant to this Section 5.2 with respect to a Fiscal Year, all distributions made by the Company with respect to such Fiscal Year minus (y) the sum of all other shall be treated as Tax Distributions distributed to such Member pursuant to this Section 8.02 until the full amount of Tax Distributions is paid with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that any Tax Distribution to a member of the Parent Corporation Group is not ultimately used by the Parent Corporation Group to pay a Tax liability (or to the extent used by the Parent Corporation Group to pay a Tax liability but ultimately refunded to the Parent Corporation Group by the applicable taxing authority) or to make a payment under the Tax Receivable Agreement, such member of the Parent Corporation Group may, in its sole discretion, elect to (i) distribute such excess cash amounts to the sum Corporation (as applicable) to be distributed by the Corporation to the shareholders of all Tax Distributions distributed the Corporation or (ii) contribute such excess cash amounts to any Member the Company in exchange for a number of Common Units or other equity securities of the Company on a value-for-value basis, and cause the Corporation to distribute Class A Shares to the holders of Class A Shares (if the Company issues Common Units to such member of the Parent Corporation Group) or such other equity securities of the Corporation (if the Company issues equity securities of the Company other than Common Units) corresponding to the equity securities issued by the Company and with substantially the same rights to dividends and distributions. Notwithstanding clause (a) of the definition of Adjustment Factor, no adjustment shall be made to the Adjustment Factor solely by reason of a distribution by the Corporation of Class A Shares or other equity securities made pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise5.2(b).

Appears in 1 contract

Samples: Limited Liability Company Agreement (Digital Media Solutions, Inc.)

Tax Distributions. (a) At least three (3) weeks prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (andNotwithstanding Sections 5.01 or 5.03 hereof, to the extent reasonably practicable, each item thereof) expected to be allocated permitted by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating the amount of each Tax Distributionapplicable Law, the Company shall assume that each Member’s Tax Liability is equal to (i) make quarterly distributions on the highest combined marginal federal, state and local income tax rate applicable for such period to an individual resident in the jurisdiction with the highest combined marginal federal, state and local income tax rate, as determined by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”), multiplied by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute Special Distribution Date to each Member for the preceding Fiscal Quarter in an amount equal to the excess, if any, of (xi) such Member’s Assumed Tax Liability with respect to such Fiscal Year minus over (yii) the sum of all other Tax Distributions distributed distributions, if any, previously made to such Member pursuant to Sections 5.01, 5.02 and 5.03 of this Section 8.02 with respect Agreement or to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii), as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member on such Special Distribution Date pursuant to Sections 5.01 or 5.03 of this Agreement (including a distribution pursuant to Section 5.03(c)); provided that if the amount of Available Cash is not sufficient to make the foregoing payments in full, the amount that is available will be distributed first to GNC, to the extent of its entitlement under this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible5.02, and thereafter, to the other Members, in proportion to their relative entitlements under this Section 5.02. Quarterly tax distributions for any such distributions Fiscal Year shall be made on the basis of estimates reasonably made by the Board and shall be trued up in preference of, and in addition to, any subsequent Tax Distributions for each subsequent Fiscal YearsQuarter based on the latest available information at the dates thereof and shall be trued up for each Fiscal Year (x) at the end of the first Fiscal Quarter of the following Fiscal Year based on the final information reported to the Members on Schedule K-1 and (y) promptly following the resolution of any tax audit, examination or other proceeding that results in any increase in a Member’s Assumed Tax Liability. For the avoidance of doubt, a former Member that is not a Member at the time of a true up pursuant to clause (y) of the foregoing sentence shall not be entitled to any additional amount pursuant to this Section 8.02(b5.02 with respect to a prior Fiscal Year unless such former Member would have been entitled to such amount after taking into account all other distributions received by such Member pursuant to Sections 5.01, 5.02 and 5.03 of this Agreement. Amounts distributed pursuant to this Section 5.02 will be treated as advances of amounts to be distributed under Section 5.01 and Section 5.03 of this Agreement and such amounts will be credited against and will reduce (dollar for dollar) shall apply in the event next future distributions to be made to each Member under Section 5.01 and Section 5.03 of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwisethis Agreement.

Appears in 1 contract

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

Tax Distributions. (a) At least three Each Member will be entitled to receive, on the date that is five (35) weeks Business Days prior to the end of any fiscal quarter of the Company, the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of date on which estimated income and gain (and, to the extent reasonably practicable, each item thereof) expected tax payments are required to be allocated made by the Company to such Member for federal income tax purposes with respect to such fiscal quarter, as estimated by the Board of Directors, in consultation with the Officers an individual calendar year taxpayer and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven (7) days prior to the estimated tax payment each due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability return of an individual calendar year taxpayer (such liability, each a “Tax LiabilityDistribution Date) that would be incurred by such Member with respect ), cumulative cash distributions in an amount equal to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distributionAssumed Tax Liability, and any other distribution under this Section 8.02, a if any. The Assumed Tax Distribution”). In calculating the amount Liability” of each Tax Distribution, the Company shall assume that each Member’s Tax Liability is Member means an amount equal to (i) the highest combined marginal federalcumulative amount of federal income taxes (including any applicable estimated taxes), state determined taking into account the character of income and local income tax rate applicable for such period to an individual resident loss allocated (or, in the jurisdiction with case of the highest combined marginal federalSeries B Units held by such Member, state and local income paid) to such Member as it affects the applicable tax rate, as determined by that the Board estimates would be due from such Member as of Directors in consultation with its tax and accounting advisors 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 (the “Tax Rate”after reflecting any adjustments thereto by reason of Code Sections 732(d), multiplied 734, or 743), reduced by (ii) such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed previous distributions made to such Member pursuant to this Section 8.02 Article 8; provided that, with respect to such Fiscal Year. For purposes of calculating the Tax Liability of Series B Units held by a Member, (x) the Company amount computed in clause (i) shall take into account any allocations of be determined by (1) including income or gain allocated pursuant to a Member Section 9.2(g) with respect to any accrued dividend each such Series B Unit only to the extent the amount of such allocated income or other gain exceeds an amount properly treated as a guaranteed payment for capital under Section 707(c) equal to the excess of the Code. Notwithstanding Stated Value over the foregoing, Tax Series B Purchase Price and (2) treating Series B Unit Distributions shall not be available made to a such Member with respect as guaranteed payments for the use of capital pursuant to any guaranteed payment for services under Section 707(c) 707 of the Code or any other payment and as the receipt of ordinary income by such Member and (y) for services to a Member not in his, her or its capacity as a Member under Section 707(a) purposes of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or clause (ii), as applicable, that would otherwise be the previous distributions made to such Member, and Member shall not reduce or offset amounts otherwise distributable include any Series B Unit Payment in Kind distributions that, pursuant to Section 8.01(b)(i) or (ii8.2(b), are treated as applicable. (b) To the extent that (i) the sum deemed distribution of all Tax Distributions distributed cash to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Rice Energy Inc.)

Tax Distributions. (a) At least three (3) weeks prior In the event that the cumulative amount of Distributions made to the end of Members pursuant to Section 6.4 hereof for any fiscal quarter Fiscal Year of the CompanyCompany is less than the Members’ Estimated Tax Liability at any time during such Fiscal Year, then the Company, at the sole discretion of the Board of Directors, shall deliver to each Member a statement setting forth the amount of income and gain (andManager shall, to the extent reasonably practicable, each item thereof) expected of the cash then available to be allocated by the Company to such Member (after taking into account reasonable reserves for federal income tax purposes with respect to such fiscal quarteranticipated future expenditures), as estimated by the Board of Directors, in consultation with the Officers and tax and accounting advisors. Notwithstanding any other provision of this Section 8.02, and prior to and in preference over any distributions pursuant to Section 8.01, the Company, at the sole discretion of the Board of Directors, shall distribute to such Member, at least seven make a Distribution (7) days prior to the estimated tax payment due date for such fiscal quarter, an amount of cash equal to the amounts estimated by the Board of Directors, in consultation with the Officers and its tax and accounting advisors, to represent the assumed federal, state and local income tax liability (such liability, a “Tax Liability”) that would be incurred by such Member with respect to such Member’s allocable share of the Company’s taxable net income for such quarter (any such distribution, and any other distribution under this Section 8.02, a “Tax Distribution”). In calculating ) to the Members not later than the date specified below, in an amount sufficient to cause the cumulative amount of Distributions made to the Members pursuant to Section 6.4 and this Section 6.6 with respect to such Fiscal Year to equal the following amounts as of the end of the calendar month preceding each of the following specified dates: (1) prior to the tenth day of April in an amount equal to 1/4 of the Members’ Estimated Tax DistributionLiability as of March 31; (2) prior to the tenth day of June in an amount equal to 1/2 of the Members’ Estimated Tax Liability as of May 31; (3) prior to the tenth day of September in an amount equal to 3/4 of the Members’ Estimated Tax Liability as of August 31; and (4) prior to the tenth day of January of the following Fiscal Year of the Company in an amount equal to the Members’ Estimated Tax Liability as of December 31 of the immediately preceding Fiscal Year of the Company. For purposes of this Section 6.6, the Company shall assume that each Member’s “Members’ Estimated Tax Liability is equal to Liability” means the product of (i) the highest combined marginal federaltaxable income of the Company, state determined without regard to any income, gain, loss or deduction attributable any “built-in gain” within the meaning of (and local income the elimination of any book-tax rate applicable disparity related thereto pursuant to) Code section 704(c), for such period to an individual resident in the jurisdiction with then current Fiscal Year of the highest combined marginal federal, state and local income tax rateCompany (except that the January distribution shall be for the prior Fiscal Year), as determined projected from time to time reasonably and in good faith by the Board of Directors in consultation with its tax and accounting advisors (the “Tax Rate”)Manager, multiplied by (ii) the Tax Distribution Rate, which amount shall be distributed among the Members pro rata in proportion to their respective estimated approximate allocable shares of such Member’s allocable share of the taxable income of the Company (as reduced, but not below zero, by any prior net loss allocated to for such Member that was not previously taken into account under this sentence). The Tax Rate may be adjusted by the Board of Directors (provided that the same percentage shall apply to each Member) to account for preferential rates of income tax applicable to certain kinds of income for individuals. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall distribute to each Member an amount equal to the excess, if any, of (x) such Member’s Tax Liability with respect to such Fiscal Year minus (y) the sum of all other Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year. For purposes of calculating the Tax Liability of a Member, the Company shall take into account any allocations of income or gain to a Member with respect to any accrued dividend or other amount properly treated as a guaranteed payment for capital under Section 707(c) of the Code. Notwithstanding the foregoing, Tax Distributions shall not be available to a Member with respect to any guaranteed payment for services under Section 707(c) of the Code or any other payment for services to a Member not in his, her or its capacity as a Member under Section 707(a) of the Code. Notwithstanding anything herein to the contrary, Tax Distributions pursuant to this Section 8.02(a) shall be treated as advances of the first Distributions under Section 8.01(b)(iii)-(vi) that would otherwise be made to such Member, and shall reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(iii)-(vi) accordingly; provided, however that Tax Distributions to the Members holding Series Seed Preferred Units, Series A Preferred Units and/or Series B Preferred Units pursuant to this Section 8.02(a) shall not be treated as advances of Distributions under Section 8.01(b)(i) or (ii)year, as applicable, that would otherwise be made to such Member, and shall not reduce or offset amounts otherwise distributable pursuant to Section 8.01(b)(i) or (ii), as applicable. (b) To the extent that (i) the sum of all Tax Distributions distributed to any Member pursuant to this Section 8.02 with respect to a Fiscal Year exceed (ii) such Member’s Tax Liability with respect to such Fiscal Year, such excess shall be considered a Tax Distribution in respect of the immediately succeeding Fiscal Year for purposes of determining the Company’s obligation to make Tax Distributions with respect to such immediately succeeding Fiscal Year. To the extent that (iii) any Member’s Tax Liability with respect to such Fiscal Year exceeds (iv) the sum of all Tax Distributions distributed to such Member pursuant to this Section 8.02 with respect to such Fiscal Year, the Company shall distribute such excess to such Member as soon as possible, and any such distributions shall be made in preference of, and in addition to, any subsequent Tax Distributions for subsequent Fiscal Years. For the avoidance of doubt, this Section 8.02(b) shall apply in the event of a redetermination of the Tax Liability of a Member after the close of a Fiscal Year, whether as a result of an audit and assessment by a taxing authority or otherwise.so projected;

Appears in 1 contract

Samples: Limited Liability Company Agreement (Hc2 Holdings, Inc.)