Common use of Tax Related Transfer Restrictions Clause in Contracts

Tax Related Transfer Restrictions. (a) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes. The requirements of this paragraph (a) shall not apply in connection with (i) any Transfer by FIM, GM Holdco or GM Preferred Holdco effected on or prior to May 22, 2009 in connection with the Company’s conversion into a Bank Holding Company under the BHC Act, (ii) any Transfer by the Treasury of the Treasury Preferred after December 29, 2009, or (iii) any Transfer by the Treasury of the Class F Preferred or Common Membership Interests underlying the Class F Preferred, provided that on or prior to December 29, 2009, the Treasury shall use its best efforts not to Transfer any Class F Preferred or Common Membership Interests underlying the Class F Preferred, prior to a Company Conversion or the listing of the Company’s membership interests on a national securities exchange, if such Transfer would be in violation of Section 9.5 of this Agreement, and in furtherance thereof, shall use its best efforts to qualify any such Transfer of Class F Preferred or Common Membership Interests underlying the Class F Preferred within the exception in Treasury Regulation Section 1.7704-1(e)(1)(vi) for block transfers (as defined in Treasury Regulation Section 1.7704-1(e)(2)). (b) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (c) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, the Treasury Preferred Holder, the Class F Preferred Holders and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). (d) Each Member agrees that the Transfer restrictions set forth in this Agreement may not be avoided by Transferring interests in any Person who directly or indirectly holds Membership Interests in the Company. (e) This Section 9.5 shall terminate and be of no further force and effect after the Company becomes taxable as a “C” corporation for U.S. federal income tax purposes.

Tax Related Transfer Restrictions. (a) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes. The requirements of this paragraph (a) shall not apply in connection with (i) any Transfer by FIM, GM Holdco or GM Preferred Holdco effected on or prior to May 2225, 2009 in connection with the Company’s conversion into a Bank Holding Company under the BHC Act, (ii) any Transfer by the Treasury Bank Holding Company Act of the Treasury Preferred after December 29, 2009, or (iii) any Transfer by the Treasury of the Class F Preferred or Common Membership Interests underlying the Class F Preferred, provided that on or prior to December 29, 2009, the Treasury shall use its best efforts not to Transfer any Class F Preferred or Common Membership Interests underlying the Class F Preferred, prior to a Company Conversion or the listing of the Company’s membership interests on a national securities exchange, if such Transfer would be in violation of Section 9.5 of this Agreement, and in furtherance thereof, shall use its best efforts to qualify any such Transfer of Class F Preferred or Common Membership Interests underlying the Class F Preferred within the exception in Treasury Regulation Section 1.7704-1(e)(1)(vi) for block transfers (as defined in Treasury Regulation Section 1.7704-1(e)(2))1956. (b) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (c) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, the Treasury Preferred Holder, the Class F Preferred Holders Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). (d) Each Member agrees that the Transfer restrictions set forth in this Agreement may not be avoided by Transferring interests in any Person who directly or indirectly holds Membership Interests in the Company. (e) This Section 9.5 shall terminate and be of no further force and effect after the Company becomes taxable as a “C” corporation for U.S. federal income tax purposes.

Tax Related Transfer Restrictions. (a) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes. The requirements of this paragraph (a) shall not apply in connection with (i) any Transfer by FIM, GM Holdco or GM Preferred Holdco effected on or prior to May 22the Effective Date, 2009 in connection with the Company’s conversion into a Bank Holding Company under the BHC Act, (ii) any Transfer by the Treasury of the Treasury Preferred after December 29, 2009, or (iii) any Transfer by the Treasury of the Class F Preferred or Common Membership Interests underlying the Class F Preferred, provided that on or prior to December 29, 2009, the Treasury shall use its best efforts not to Transfer any Class F Preferred or Common Membership Interests underlying the Class F Preferred, prior to a Company Conversion or the listing of the Company’s membership interests on a national securities exchange, if such Transfer would be in violation of Section 9.5 of this Agreement, and in furtherance thereof, shall use its best efforts to qualify any such Transfer of Class F Preferred or Common Membership Interests underlying the Class F Preferred within the exception in Treasury Regulation Section 1.7704-1(e)(1)(vi1.7704 -1(e)(1)(vi) for block transfers (as defined in Treasury Regulation Section 1.7704-1(e)(21.7704 -1(e)(2)). (b) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h1.7704 -1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iiiii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company in accordance with Treasury Regulations Section 1.7704-1(h1.7704 -1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (c) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, the Treasury Preferred Holder, the Class F Preferred Holders and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii1.7704 -1(h)(1)(ii). (d) Each Member agrees that the Transfer restrictions set forth in this Agreement may not be avoided by Transferring interests in any Person who directly or indirectly holds Membership Interests in the Company. (e) This Section 9.5 shall terminate and be of no further force and effect after the Company becomes taxable as a “C” corporation for U.S. federal income tax purposes.

Tax Related Transfer Restrictions. (a) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes. The requirements of this paragraph (a) shall not apply in connection with (i) any Transfer by FIM, GM Holdco or GM Preferred Holdco effected on or prior to May 2225, 2009 in connection with the Company’s conversion into a Bank Holding Company under the BHC Act, (ii) any Transfer by the Treasury of the Treasury Preferred after December 29, 2009, or (iii) any Transfer by the Treasury of the Class F Preferred or Common Membership Interests underlying the Class F Preferred, provided that on or prior to December 29, 2009, the Treasury shall use its best efforts not to Transfer any Class F Preferred or Common Membership Interests underlying the Class F Preferred, prior to a Company Conversion or the listing of the Company’s membership interests on a national securities exchange, if such Transfer would be in violation of Section 9.5 of this Agreement, and in furtherance thereof, shall use its best efforts to qualify any such Transfer of Class F Preferred or Common Membership Interests underlying the Class F Preferred within the exception in Treasury Regulation Section 1.7704-1(e)(1)(vi) for block transfers (as defined in Treasury Regulation Section 1.7704-1(e)(2)). (b) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company in accordance with Treasury Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (c) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, the Treasury Preferred Holder, the Class F Preferred Holders Holder and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). (d) Each Member agrees that the Transfer restrictions set forth in this Agreement may not be avoided by Transferring interests in any Person who directly or indirectly holds Membership Interests in the Company. (e) This Section 9.5 shall terminate and be of no further force and effect after the Company becomes taxable as a “C” corporation for U.S. federal income tax purposes.

Tax Related Transfer Restrictions. (a) Notwithstanding any other provisions of this Article IX, no Transfer of Membership Interests subject to this Article IX may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board of Managers and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the discretion of the Board of Managers), such Transfer would not cause the Company (for so long as it is a limited liability company) to be treated as a publicly traded partnership for United States federal tax purposes. The requirements of this paragraph (a) shall not apply in connection with (i) any Transfer by FIM, GM Holdco or GM Preferred Holdco effected on or prior to May 22, 2009 in connection with the Company’s conversion into a Bank Holding Company under the BHC Act, (ii) any Transfer by the Treasury of the Treasury Preferred after December 29, 2009, or (iii) any Transfer by the Treasury of the Class F Preferred or Common Membership Interests underlying the Class F Preferred, provided that on or prior to December 29, 2009, the Treasury shall use its best efforts not to Transfer any Class F Preferred or Common Membership Interests underlying the Class F Preferred, prior to a Company Conversion or the listing of the Company’s membership interests on a national securities exchange, if such Transfer would be in violation of Section 9.5 of this Agreement, and in furtherance thereof, shall use its best efforts to qualify any such Transfer of Class F Preferred or Common Membership Interests underlying the Class F Preferred within the exception in Treasury Regulation Section 1.7704-1(e)(1)(vi) for block transfers (as defined in Treasury Regulation Section 1.7704-1(e)(2)). (b) No Transfer of a Membership Interest (or beneficial interest therein) shall be effective, and neither the Company nor the Tax Matters Member shall recognize any such Transfer: (i) (except in the case of a Transfer pursuant to a Company Conversion) unless the Transferee represents and agrees in a certification acceptable to the Company and the Tax Matters Member that either (A) it is not, for United States federal tax purposes, a partnership, a trust, an estate or a “S corporation” (as defined in the Code; each a “Pass-through Entity”) or (B) it is, for United States federal tax purposes, a Pass-through Entity, but after giving effect to such purchase of Membership Interests either (1) less than fifty percent (50%) of the aggregate value of the Pass-through Entity’s assets will consist of Membership Interests, and no principal purpose in using a Pass-through Entity to purchase the Membership Interests is to permit the Company to have more than one hundred “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (2) it will be treated as one partner in the Company for purposes of Treasury Regulations Section 1.7704-1(h); (ii) unless the Transferee is a “qualified purchaser” under the 1940 Act; and (iii) (except in the case of a Transfer pursuant to a Company Conversion) if, as a result of such Transfer, the Membership Interests would be owned by more than ninety-nine Persons as determined by the Company in accordance with Treasury 72 Regulations Section 1.7704-1(h) or, if, as a result of such Transfer, the Company would otherwise be treated as a publicly traded partnership for United States federal tax purposes. (c) Management Company represents and warrants to the other Members that, as of the Effective Date, it constitutes not more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). No Member shall Transfer, nor shall permit any of its direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interest if such Transfer would result in the Company having more than 100 “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). None of FIM, Management Company, GM Preferred Holdco or GM Holdco has Transferred or shall Transfer, nor has permitted or shall permit any Transferee or any of their direct or indirect equityholders to Transfer, directly or indirectly, any Membership Interests if such Transfer would have resulted or would result in (i) FIM and its Transferees (and their respective Transferees) collectively constituting more than seventy four “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii), (ii) Management Company and its Transferees (and their respective Transferees) collectively constituting more than one “partner” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (iii) GM Preferred Holdco, GM Holdco, Blocker Sub, the Treasury Preferred Holder, the Class F Preferred Holders and their respective Transferees (and their respective Transferees) collectively constituting more than twenty five “partners” within the meaning of Treasury Regulations Section 1.7704-1(h)(1)(ii). (d) Each Member agrees that the Transfer restrictions set forth in this Agreement may not be avoided by Transferring interests in any Person who directly or indirectly holds Membership Interests in the Company. (e) This Section 9.5 shall terminate and be of no further force and effect after the Company becomes taxable as a “C” corporation for U.S. federal income tax purposes.