Common use of Authentication and Delivery; Form Clause in Contracts

Authentication and Delivery; Form. (a) Each Certificate will be substantially in the form set forth in Exhibit B, subject to modifications as required or permitted by this Agreement or the related Series Supplement. Each Certificate will be executed by manual or electronic signature by an Authorized Officer of the Company on behalf of the Company, and shall be authenticated by the Titling Company Registrar upon receipt of a written direction from the Company. Each Certificate bearing the manual or facsimile signatures of individuals who were authorized to sign on behalf of the Company or the Titling Company Registrar at the time when such signatures were affixed will be valid and binding Certificates representing such Series Interests notwithstanding that any or all of such individuals may have ceased to be so authorized prior to or did not hold such offices at the date of execution, authentication and delivery of such Certificate or thereafter. (b) Certificates may be typewritten or produced by any other method, all as determined by the Company, as evidenced by the Company’s execution of such Certificates. (c) No Person may acquire or receive any Certificate, any Series Interest, or become a Holder unless: (i) such Person is not acquiring its Series Interest through an “established securities market” within the meaning of section 7704(b) of the Code; and (ii) after giving effect to such acquisition or receipt, there are no more than 80 beneficial owners for U.S. federal income tax purposes of the Company or portion thereof (including for this purpose the Company and all Series together in aggregate), and including indirectly beneficial owners holding through entities that are PTP Pass-Through Entities and further including holders of debt or any similar financial instrument secured by an interest in a Series (or Certificate or Series Interest) for which a “will”-level opinion of nationally recognized tax counsel confirming the characterization of such instrument as debt for U.S. federal income tax purposes, was not rendered. For purposes of this clause (c), a “PTP Pass-Through Entity” is any Person that is for U.S. federal income tax purposes a partnership, grantor trust, or S Corporation (or disregarded as an entity separate from but owned by such an entity) as to which, after giving effect to such acquisition or receipt, 50 percent or more of the value of each beneficial ownership interest in such entity (or its owner in the case of a disregarded entity) is at any time attributable to such entity’s interest in the Company (without regard to any Series) or any Series (taking into account debt or financial instruments described in clause (c) above). This Section 5.1(c) shall be applied with the intent to satisfy Section 301.7704-1(h) of the Treasury Regulations, and where any transfer of a Certificate or interest in the Company or a Series would not otherwise be allowable by reason of failing any of the tests in this Section 5.1(c) such transfer shall nonetheless be allowed if the Member has received an opinion of nationally recognized tax counsel to the effect that such transfer will not cause the Company or any Series to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes. (d) Notwithstanding that a transfer to a Person may be permissible pursuant to subsection (c), such transfer shall not be permitted unless such Person is not subject to withholding under sections 1441, 1442 or 1446 with respect to payments, distributions and allocations from the Company or a Series.