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. Borrower and Lender hereby acknowledge and agree that the Warrant is part of an investment unit within the meaning of Section 1273(c)(2) of the U.S. Internal Revenue Code which includes the Loans. Borrower and Lender further agree as between Borrower and Lender, that the fair market value of the Warrant is Cdn. $394,526 and that, pursuant to U.S. Treas. Reg. § 1.1273-2(h), Cdn. $394,526 of the issue price of the investment unit will be allocable to the Warrant and the balance shall be allocable to the Loans. Borrower and Lender agree to prepare their federal income tax returns in a manner consistent with the foregoing agreement.
Investment Unit. Borrower and Lenders hereby acknowledge and agree that, for U.S. federal income tax purposes, (a) for the aggregate amount of each Term Loan on the date thereof: (i) Lenders shall make such Term Loan to Borrower and (ii) Borrower shall issue to, and Lenders shall purchase from Borrower, the Warrants with respect to such Term Loan (or Borrower shall otherwise adjust the Warrants for such Term Loan), and (b) the issue price (within the meaning of Section 1273(b) of the Code) of each Term Loan will be determined pursuant to Section 1272 through 1275 of the Code and the United States Treasury Regulations thereunder, including Section 1.1273-2(h)(1) of the United States Treasury Regulations. The parties hereto agree to report all income tax matters with respect to the Warrants consistent with the provisions of this Section 12 unless otherwise required due to a change in any applicable law or pursuant to a “determination” within the meaning of Section 1313 of the Code.
Investment Unit. Borrowers and Lenders acknowledge and agree that the Warrant is part of an investment unit within the meaning of Section 1273(c)(2) of the Code, which includes the Term Loan Advance. Borrowers and Lenders further agree (i) to determine the fair market value of the Warrant as of the Closing Date within 30 days after the date hereof, (ii) to allocate an amount of the issue price of the investment unit (which includes the Term Loan Advance) equal to the agreed upon fair market value of the Warrant to the Warrant pursuant to Treasury Regulation Section 1.1273-2(h), and (iii) for all U.S. federal income tax purposes, to treat the amount allocated to the Warrant under (ii) above as original issue discount on the Term Loan Advance.
