Investment Unit. The Company and the Holder acknowledge and agree that the Term Loan (as defined in the Financing Agreement) made on the Effective Date (as defined in the Financing Agreement) and the Warrant, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), and agree that the issue price of such investment unit shall be allocated between the Term Loan (as defined in the Financing Agreement) and the Warrant based on their relative fair market values as of the Original Issue Date, in accordance with Treasury Regulation Section 1.1273-2(h). For this purpose, the Company and the Holder agree that, as of the Effective Date (as defined in the Financing Agreement), the fair market value of the Warrant is $0. The Company and the Holder agree to file all applicable tax returns in a manner consistent with such allocation and not to take any position on any tax return or in any tax proceeding that is inconsistent with such allocation, unless otherwise required by a contrary “determination” within the meaning of Section 1313 of the Code.
Investment Unit. Borrower, Agent and Lenders agree, unless otherwise required by a change in law, or as required by the Internal Revenue Service or other taxing authority following an audit or examination, (i) to treat the Loans as indebtedness for U.S. federal income tax purposes and (ii) to treat the Loans and the Warrants as having been issued as an “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended, and, correspondingly, the Loans as having been issued with original issue discount for U.S. federal income tax purposes to the extent required.
Investment Unit. The Company and the Purchasers agree that it is their intention for U.S. federal and applicable state and local tax purposes that the aggregate consideration paid by the Purchasers for the Securities under this Agreement be allocated such that $9,340,066 be allocated to the Warrants, and $16,170,138 be allocated to the Preferred Stock. The Company and the Purchasers shall report and file all Tax Returns consistent with the foregoing and shall take no Tax position contrary thereto or inconsistent therewith, unless required to do so by applicable Law or a final determination as defined in Section 1313 of the Code or with the consent of the other party (not to be unreasonably withheld, conditioned or delayed). In the event that such treatment is disputed by any Governmental Authority, the party receiving notice of the dispute shall promptly notify the other party concerning resolution of the dispute.
Investment Unit. For federal income tax purposes, pursuant to Treasury Regulations § 1.1273-2(h), the Company and the Investors acknowledge that the “issue price” of the Notes at Closing is 100% of the stated principal amount of the Notes minus the fair market value and purchase price of the Warrants; and the aggregate fair market value and purchase price of the Warrants is eight million Dollars ($8,000,000) if one hundred million Dollars ($100,000,000) stated principal amount of Notes are purchased and sixteen million Dollars ($16,000,000) if two hundred million Dollars ($200,000,000) stated principal amount of Notes are purchased. Each of the Obligors and the Investors agree to use the foregoing issue price, fair market value and purchase price for U.S. federal income tax purposes with respect to the transactions contemplated hereby (unless otherwise required by a final determination by the IRS or a court of competent jurisdiction).
Investment Unit. The Borrower and the applicable Lenders agree, for U.S. federal income (and applicable U.S. state and local and non-U.S.) tax purposes, that (i) each of the Loans issued pursuant to this Agreement, together with the Parent common stock issued pursuant to Section 6.01(s) (the “Parent Stock”) constitute an “investment unit” under Section 1273(c)(2) of the Code and United States Treasury Regulations Section 1.1273-2(h), (ii) the “issue price” of the Loans under Section 1273(b) of the Code shall be determined by taking into account the aggregate purchase price allocated to such Parent Stock pursuant to this Section 5.03(h), and (iii) if the difference between the aggregate principal amount of the Loans and the aggregate “issue price” of the Loans is more than “de minimis,” the difference shall be reported as “original issue discount”. Within thirty (30) days of the issuance of the Parent Stock hereunder, the parties shall cooperate in good faith to agree on the value of such Parent Stock, which the parties acknowledge and agree shall be equal to the fair market value of the Parent Stock as of the date of issuance. No party shall take any position inconsistent with the tax treatment set forth in this Section 5.03(h) on any U.S. federal (or applicable U.S. state or local or non-U.S.) tax return or for any other U.S. federal income (or applicable U.S. state or local or non-U.S.) tax purpose, except as required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or pursuant to a good faith settlement of an audit by any tax authority.
Investment Unit. The Company, the Issuer and the Holder acknowledge and agree that the Class A Notes (as defined in the Indenture) made on the Effective Date (as defined in the Indenture) and the Warrant, taken together, comprise an “investment unit” for purposes of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the “Code”), and agree that the issue price of such investment unit shall be allocated between the Class A Notes (as defined in the Indenture) and the Warrant based on their relative fair market values as of the Effective Date, in accordance with Treasury Regulation Section 1.1273-2(h). For this purpose, the Company, the Issuer and the Holder agree that, as of the Effective Date (as defined in the Indenture), the fair market value of the Warrant is $0. The Company, the Issuer and the Holder agree to file all applicable tax returns in a manner consistent with such allocation and not to take any position on any tax return or in any tax proceeding that is inconsistent with such allocation, unless otherwise required by a contrary “determination” within the meaning of Section 1313 of the Code.
Investment Unit. The Note Purchaser and the Company hereby acknowledge and agree that the Notes are part of an “investment unit” within the meaning of Section 1273(c)(2) of the Code, which includes the Warrants. Notwithstanding anything to the contrary contained herein or in the Warrant Agreement, the Note Purchaser and the Company hereby further acknowledge and agree that solely for United States federal income tax purposes the aggregate “issue price” of the Notes and the Warrants allocated to the Notes pursuant to Schedule 2.2 to the Warrant Agreement under Section 1273(b) of the Code (and for purposes of comparable state and local income tax laws) shall equal $7,465,170.34 and $534,829.66, respectively. The Note Purchaser and the Company agree to use the foregoing issue prices for all income tax purposes with respect to this transaction.
Investment Unit. Each of the Company and the Holders (by their acceptance of the Warrants) (i) acknowledges that the original Warrants are part of an “investment unit” within the meaning of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended, which investment unit includes the loans under the Credit Agreement, and (ii) agree to allocate zero fair market value to the original Warrants and prepare their respective federal income tax returns in a manner consistent with the foregoing.
Investment Unit. For U.S. federal (and applicable state and local) income tax purposes, each Lender and the Borrower agree (i) to treat the Class C Units issued to the Lenders contemporaneously with the issuance of the Initial Loans as equity of the Borrower as of the Initial Closing Date, (ii) to treat the Initial Loans as debt, (iii) to treat such Class C Units, the value of the rights acquired or to be acquired by the Lenders under the Tax Receivables Agreement and the Initial Loans as having been issued as an “investment unit” under Section 1.1273-2(h) of the U.S. Treasury Regulations and (iv) the portion of the “issue price” of the investment unit allocated to the Class C Units and the rights acquired under the Tax Receivables Agreement to be an aggregate amount equal to $2,800,000 and the portion of the “issue price” of the investment unit allocated to the Initial Loans to be an aggregate amount equal to $56,000,000 (taking into account the fees payable pursuant to Section 1.6). The Administrative Agent shall determine (in consultation with but without the consent of the Borrower) the issue price of any Additional Loans, taking into account any Class C Units or other equity issued to and any fees shown on the Schedule paid to the Lenders in connection with such Additional Loans. Each Lender and the Borrower agree not to take any action or position contrary to this Section 9.24 unless required pursuant to a determination (as defined in Section 1313(a) of the Internal Revenue Code of 1986, as amended, or any similar provision of other applicable tax law). To the extent not otherwise provided, Administrative Agent and each Lender (or a transferee of a Lender) shall provide the Borrower with a duly executed IRS Form W-9 (or any successor or similar form) on the Initial Closing Date or on the date of any transfer, as applicable.
Investment Unit. Full consideration for the Shares acquired hereunder will be provided by the execution and delivery with this Shares Subscription Agreement of the Assignment, as hereinafter defined, assigning the Investment Units to the Company.
