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Common use of Treatment and Tax Certification Clause in Contracts

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed to treat, and shall treat, the Notes, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person, or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 2 contracts

Samples: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II), Indenture and Security Agreement (Blue Owl Technology Income Corp.)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed to treat, and shall treat, the Notes, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or W-9, an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person), or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its their agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (cb) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail be subject to achieve Tax Account Reporting Rules Complianceany tax under FATCA, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes Note a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the Cayman Islands Tax Information Authority, the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (ec) Each Holder will be required or deemed to represent that, if it is not a United States Tax Personperson for U.S. federal income tax purposes, it eitherit: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” with respect to the holder or any beneficial owners of the Issuer (or its sole owner, as applicable) Preferred Shares within the meaning of section 871(h)(3) or section 881(c)(3)(B) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (holder or its sole owner, as applicable) any beneficial owners of the Preferred Shares within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within in the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in payments on the United StatesNotes. (fd) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (ge) Each Holder represents that, if that it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trustsdefined in Treasury regulations section 1.385-1(c)(4), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or which a beneficial owner of Preferred Shares is a “covered member” (B) as defined in Treasury regulations section 1.385-1(c)(2)), except to the extent that the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; its agents have provided that such beneficial owner may acquire Secured Notes in violation with an express waiver of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesrepresentation. (hf) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 2 contracts

Samples: Supplemental Indenture (Blue Owl Technology Finance Corp.), Indenture and Security Agreement (Owl Rock Technology Finance Corp.)

Treatment and Tax Certification. (a) Each Holder (includingwhich includes, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall a Note) of a Secured Note (or any interest therein) will be deemed to have represented and agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder of a Subordinated Note (or any interest therein) will timely furnish be deemed to have represented and agreed to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note (or any interest therein) will be deemed to agree and understand that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Class C Note or Subordinated Note (or any interest therein) represents and warrants, and will be deemed to have represented and warranted, that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form) and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) [reserved]. (f) Each Holder will be required of a Secured Note (or deemed to represent that, if it any interest therein) that is not a United States Tax Person, Person represents and will be deemed to have represented that either (A) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; , (iiB) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fC) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Class C Note or a Subordinated Note (or any interest therein) represents, acknowledges, and agrees, and will be deemed to have represented, acknowledged and agreed that: (i) such Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (A) none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Class C Notes, the Subordinated Notes and any other equity interests in the Issuer, and (B) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Class C Notes, Subordinated Notes or any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or King & Spalding LLP, or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) such Note (or any interest therein) may not be acquired, and no Holder of such Note may sell, transfer, assign, participate, pledge or otherwise dispose of such Note (or any interest therein) or cause the Class C Notes or Subordinated Note (or any interest therein) to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of Class C Notes or Subordinated Notes and any other equity interests in the Issuer to be more than 90; (iii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations or such Notes); and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of such Note (or any interest therein) that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in such Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, it is notPerson represents and acknowledges, and will be deemed to have represented and acknowledged, that it is not be, and will not become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) [reserved]. (j) Each holder or an entity that beneficial owner of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within k) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the meaning of the Section 385 Rules) with respect Issuer is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such expanded group; provided that such holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (l) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hm) Each Holder of a Class C Note or a Subordinated Note (or any interest therein) agrees, and beneficial owner of Preferred Shares will be required or deemed to agree have agreed, to act deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note (or any interest therein), a properly completed certificate, in accordance with Sections 2.7 a form reasonably acceptable to the transferee and 2.8 the Trustee, stating, under penalty of perjury, the transferor’s United States taxpayer identification number and that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Class C Note or a Subordinated Note (or any interest therein) acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (n) Each Holder of a Note (or any interest therein) will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by such Holder to comply with FATCA or its obligations under the Note. The indemnification will continue with respect to any period during which the Holder held a Note (or any interest therein), notwithstanding the Holder ceasing to be a Holder of the Note.

Appears in 2 contracts

Samples: Indenture (Monroe Capital Income Plus Corp), Indenture (Monroe Capital Income Plus Corp)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such a Note) of a Secured Note represents and agrees to treat the Secured Notes shall be deemed to have agreed to treat, and shall treat, the Notes, to the extent outstanding as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder will timely furnish of a Subordinated Note represents and agrees to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Secured Note agrees and understands that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note represents and warrants that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder will of a Secured Note agrees to provide the Issuer, the Trustee and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or deemed the Holder of such Note. In addition, each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges that the Issuer has the right under this Indenture to represent that, if it withhold on any Holder of a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note that is not a United States Tax Person, Person represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. ; or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Subordinated Note represents, acknowledges and agrees that: (i) such Subordinated Note may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the Retention Provider, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Subordinated Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note or cause the Subordinated Note to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 88; and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any Person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note that is not a United States Tax Person, Person represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnerships for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note acknowledges and agrees that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within the meaning j) Each Holder of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides a Subordinated Note acknowledges and agrees that, for so long as the Issuer with is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such Holder for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note acknowledges and agrees that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Subordinated Note agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note, a properly completed certificate, in a form reasonably acceptable to the transferee and beneficial owner the Trustee, stating, under penalty of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 perjury, the transferor’s United States taxpayer identification number and 2.8 that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Subordinated Note acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (m) Each Holder of a Note agrees that it will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which it held such Note, notwithstanding it ceasing to be a Holder of the Note.

Appears in 2 contracts

Samples: Supplemental Indenture (GOLUB CAPITAL BDC, Inc.), Indenture (GOLUB CAPITAL INVESTMENT Corp)

Treatment and Tax Certification. (a) Each The Issuers and the Collateral Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)Secured Debt or Subordinated Securities, by acceptance of such Notes Secured Debt or Subordinated Securities or an interest in such Notes Secured Debt or Subordinated Securities shall be deemed to have agreed agreed, to treat, and shall treat, the Notes, to Secured Debt or Subordinated Securities as described in the extent outstanding for “Certain U.S. federal income tax purposes, as debt and Federal Income Tax Considerations” section of the Preferred Shares as equity, in each case, Offering Circular for all U.S. United States federal, state and local income tax purposes and will shall take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish and beneficial owner of Secured Debt or Subordinated Securities, by acceptance of such Secured Debt or Subordinated Securities or an interest in such Secured Debt or Subordinated Securities, shall be deemed to understand and acknowledge that failure to provide the Applicable Issuer, the Collateral Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax personU.S. Person) may result in withholding from payments in respect of such Note or Subordinated Security, including U.S. federal withholding or back-up withholding. (c) Each Holder and beneficial owner of Secured Debt or Subordinated Securities, by acceptance of such Secured Debt or Subordinated Securities or an interest in such Secured Debt or Subordinated Securities, shall be deemed to agree to provide the Issuer and the Collateral Trustee any U.S. federal income tax form, certification or other information or documentation that is required or is otherwise necessary (in the sole determination of the Issuers, the Collateral Trustee, or any successors other agent of the Issuers, as applicable) (a) to such IRS forms) that enable the IssuerIssuers, the Trustee Collateral Trustee, or other agent of the Issuers to determine their respective agents reasonably request in order duties and liabilities with respect to (A) make payments any taxes they may be required to withhold pursuant to the Code in respect of such Secured Debt or Subordinated Securities or the Holder without, of such Secured Debt or at a reduced rate of, withholdingSubordinated Securities or beneficial interest therein, (Bb) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which they receive paymentseither Issuer receives payments on its assets, and or (Cc) to enable the Issuers, the Collateral Trustee, or other agent of the Issuers to satisfy reporting and other obligations under the Code, Code and Treasury regulations, including any cost basis reporting obligations. Each holder and beneficial owner of a Secured Debt or Subordinated Securities, by acceptance of such Secured Debt or Subordinated Securities or an interest in such Secured Debt or Subordinated Securities, shall be deemed to agree that the Issuers may provide such information and any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes the Secured Debt or Subordinated Securities to the U.S. Internal Revenue Service Service. In addition, it understands and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure acknowledges that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees has the right under this Indenture to withhold from any beneficial owner of an interest in a Note that no Secured Notes may be transferred by a Person fails to establish an exemption from which the Issuer is disregarded as separate for U.S. federal income withholding tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) under Sections 1471 through 1474 of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 2 contracts

Samples: Supplemental Indenture (Owl Rock Capital Corp), Indenture and Security Agreement (Owl Rock Capital Corp)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Secured Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed agreed, to treat, and shall treat, the Notes, Secured Notes as debt for all U.S. federal and to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will take no action inconsistent with purposes, to the extent such treatment Secured Notes are treated as outstanding for such purposes, unless otherwise required by lawany relevant taxing authority. (b) Each Holder will timely furnish the Issuerand beneficial owner of Secured Notes other than Potential Equity Notes, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case by acceptance of a Person that is a United States Tax person such Notes or an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person, or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced interest in such matters is delivered to the TrusteeNotes, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will shall be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent thatrepresent, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States warrant and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents covenant that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Potential Equity Notes or Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the regulations issued under Section 385 Rulesof the Code) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the regulations issued under Section 385 Rulesof the Code) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized treated as equity under the regulations issued under Section 385 Rulesof the Code. (hc) Each Holder and beneficial owner of Secured Notes agrees (i) except as prohibited by applicable law, to obtain and provide the Issuer and the Trustee (including their agents and representatives), as applicable, with information or documentation, and to update or correct such information or documentation, as may be necessary or helpful (in the sole determination of the Issuer, the Trustee or their agents or representatives, as applicable) to enable the Issuer to achieve Tax Account Reporting Rules Compliance (the obligations undertaken pursuant to this clause (i), the “Holder Tax Obligations”), (ii) that the Issuer and/or the Trustee or their agents or representatives may (A) provide such information and documentation and any other information concerning its investment in such Notes to the Cayman Islands Tax Information Authority, the IRS and any other relevant tax authority and (B) take such other steps as they deem necessary or helpful to achieve Tax Account Reporting Rules Compliance, including withholding on “passthru payments” (as defined in the Code), and (iii) that if it fails for any reason to comply with the Holder Tax Obligations, or the Issuer otherwise reasonably determines that such beneficial owner’s direct or indirect acquisition, holding or transfer of an interest in such Notes would otherwise prevent the Issuer from achieving Tax Account Reporting Rules Compliance, the Issuer shall have the right, in addition to withholding on passthru payments made to the applicable Holder of Notes or any agent or intermediary through which its Notes are held, to (x) compel it to sell its interest in such Notes, (y) after 10 Business Days’ notice from the Issuer (or its agents) sell such interest on its behalf and/or (z) assign to such Notes a separate CUSIP or CUSIPs. Moreover, each such beneficial owner will agree, or be deemed to agree, to indemnify the Issuer, the Trustee and the other beneficial owners of Notes for all damages, costs and expenses that result from the failure of such Person to comply with its Holder Tax Obligations. This indemnification will continue even after the Person ceases to have an ownership interest in the Notes. (d) Each Holder of Secured Notes that are not Potential Equity Notes (or any interest therein) that is not a United States Tax Person will make, or by acquiring such Notes will be deemed to make, a representation to the effect that either (i) it is not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code), a 10% shareholder of the issuer of such Notes (as determined for U.S. federal income tax purposes) within the meaning of Section 871(h)(3) of the Code, or a controlled foreign corporation within the meaning of Section 957(a) of the Code that is related to the issuer of such Notes (as determined for U.S. federal income tax purposes) within the meaning of Section 881(c)(3) of the Code, (ii) it has provided an IRS Form W-8BEN or W-8BEN-E (or successor form) representing that it is a person that is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States, or (iii) it has provided an IRS Form W-8ECI (or successor form) representing that all payments received or to be received by it on such Notes are effectively connected with the conduct of a trade or business in the United States. (e) In the case of the Potential Equity Notes: (i) It is a United States Tax Person and a properly completed and signed IRS Form W-9 (or applicable successor form) is attached hereto. It agrees and acknowledges that the failure to provide such form may result in withholding from payments in respect of its Potential Equity Notes, including U.S. federal withholding or backup withholding, and that any purported transfers made in violation of the foregoing requirements shall be void ab initio. (ii) Unless 100% of the Potential Equity Notes and the Preferred Shares are being acquired by it and continue to be so held, it must either (i) not be treated as a partnership, grantor trust or S corporation for United States federal income tax purposes (a “Flowthrough Entity”), or (ii) be a Flowthrough Entity (provided that none of the direct or indirect beneficial owners of any interest in such Person has, or will have, 40% or more of the value of their interest in such Person attributable to the aggregate interest of such Person in the Potential Equity Notes and the Preferred Shares) (each person that is described in, and makes the representation in either clause (i) or (ii), a “Direct Tax Owner” with respect to the Potential Equity Notes or the Preferred Shares); unless written advice of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Issuer and the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that such status will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (iii) It agrees that no transfer, sale, assignment, participation, pledge or other disposition (a “Transfer”) of an interest in the Potential Equity Notes (or any derivative interest therein) shall be effective, and no such Transfer shall be recognized, if (i) such Transfer results in there being more than 98 Direct Tax Owners in the aggregate of the Preferred Shares and Potential Equity Notes or such Transfer would otherwise cause the Issuer to be treated as a publicly traded partnership as defined in Section 7704(b) of the Code or (ii) such Notes are Transferred on or through (A) an established securities market or (B) a secondary market (or the substantial equivalent thereof) within the meaning of Section 7704(b) of the Code (and the Treasury Regulations thereunder), unless written advice of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that such acquisition, ownership or Transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (iv) It agrees to provide (A) any transferee of its Potential Equity Notes a certification that it is a United States Tax Person (such as a properly completed and signed IRS Form W-9 (or applicable successor form)) in accordance with Section 1446(f)(2) of the Code and any applicable Treasury Regulations thereunder such that the transferee will not be obligated to withhold under Section 1446(f)(1) of the Code, and (B) such forms, documentation, proof of payment or other certifications as reasonably required by the Issuer or the Trustee to determine that such transferee has complied with Section 1446(f) of the Code (ignoring for this purpose Section 1446(f)(4) of the Code), and any similar provision of state, local or non-U.S. law. It agrees that the Issuer or the Trustee may provide such information and any other information concerning its investment in such Potential Equity Notes to the IRS. (f) Each Holder and beneficial owner of Secured Notes, by acceptance of such Notes or an interest in such Notes, shall be deemed to understand and acknowledge that failure to provide the Applicable Issuer, the Trustee or any Paying Agent with the properly completed and signed applicable tax certifications (generally, in the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a United States Tax Person or, in the case of Notes that are not Potential Equity Notes, the applicable IRS Form W-8 (or applicable successor form) (together with all appropriate attachments) in the case of a Person that is not a United States Tax Person) may result in withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding. (g) Each Holder and beneficial owner of Secured Notes, by acceptance of such Notes or an interest in such Notes, shall be deemed to agree to act provide the Issuer and the Trustee any U.S. federal income tax form, certification or other information or documentation that is required or is otherwise necessary (in accordance with Sections 2.7 and 2.8 the sole determination of the Fiscal Agency AgreementIssuers, the Trustee, or other agent of the Issuers, as applicable) (i) to enable the Issuers, the Trustee, or other agent of the Issuers to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to the Code in effect respect of such Notes or the Holder of such Notes or beneficial interest therein, (ii) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which either Issuer receives payments on its assets or (iii) to enable the Closing DateIssuers, the Trustee, or other agent of the Issuers to satisfy reporting and other obligations under the Code and Treasury regulations, including any cost basis reporting obligations. Each holder and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to agree that the Issuers may provide such information and any other information concerning its investment in the Notes to the IRS. In addition, it understands and acknowledges that the Issuer has the right under this Indenture to withhold from any beneficial owner of an interest in a Note that fails to establish an exemption from U.S. federal withholding tax under Sections 1471 through 1474 of the Code.

Appears in 1 contract

Samples: Second Supplemental Indenture (Blue Owl Capital Corp)

Treatment and Tax Certification. (a) Each The Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt of the Issuer for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income tax and franchise Tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal and accounting purposes. (b) The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise Tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any tax forms or the properly completed and signed applicable Tax certifications (includinggenerally, without limitationin the case of U.S. federal income Tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, or any successors to such IRS formsU.S. Person) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal Tax withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuerwithholding. (cd) Each Holder will comply with the Holder Reporting Obligations. In the event purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Holder fails for any reason Note or an interest in such Note, shall be deemed to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or have agreed to the extent that its ownership of Notes would otherwise cause provide the Issuer to fail to achieve Tax Account Reporting Rules Compliance, and Trustee any information or documentation that is required under Sections 1471 through 1474 off the Issuer Code or is otherwise necessary (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to in the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit sole determination of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or Trustee, or other agent of the Issuer, as applicable) to enable the Issuer, the Trustee, or other agent of the Issuer to (i) determine their agents duties and liabilities with respect to any Taxes they may be required to withhold pursuant to such Code sections 1471 through 1474 in respect of such Note or representatives the Noteholder of such Note or beneficial interest therein or (ii) otherwise comply with the requirements of Code sections 1471 through 1474. Each purchaser and subsequent transferee of the Notes will be deemed to acknowledge and agree that the Issuer may (1) provide any such information and documentation any other information concerning its investment in its the Notes to the U.S. Internal Revenue Service Service. In addition, each purchaser and any other relevant tax authority subsequent transferee of the Notes will be deemed to acknowledge and (2) take such other steps as they deem necessary or helpful to ensure agree that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees has the right under the Indenture to withhold from any beneficial owner of an interest in a Note that no Secured Notes may be transferred by a Person from which fails to comply with the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion requirements of tax counsel Sections 1471 through 1474 of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transferCode. (e) Each Holder will purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be required or deemed to represent have represented that, if it is not a United States Tax Personperson” as defined in Section 7701(a)(30) of the Code, it either: (i) is: either (A) it is not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , or (B) not it is a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code person that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax Tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) it is not purchasing the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized order to reduce its U.S. tax counsel experienced in such matters, in form and substance satisfactory federal income Tax liability pursuant to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesa Tax avoidance plan. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 1 contract

Samples: Indenture (TICC Capital Corp.)

Treatment and Tax Certification. (a) Each The Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt of the Issuer for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal and accounting purposes. (b) The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, U.S. Person) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications meet its Noteholder Reporting Obligations may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments withholding. (d) Each purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be deemed to have agreed (1) to provide the Issuer and Trustee (i) any information as is necessary (in the sole determination of the Issuer or the Trustee, as applicable) for the Issuer and the Trustee to determine whether such purchaser, beneficial ownerowner or transferee is a U.S. Person or a United States owned foreign entity (as described in Section 1471(d)(3) of the Code) (“United States owned foreign entity”) and (ii) any additional information that the Issuer or its agent requests in connection with Sections 1471-1474 of the Code and (2) if it is a United States person or a United States owned foreign entity that is a Holder or beneficial owner of Notes or an interest therein as of March 18, 2012 or that acquires an interest in the Notes after March 18, 2012, be required to (x) provide the Issuer. Amounts withheld Issuer and Trustee its name, address, U.S. taxpayer identification number and any other information requested by the Issuer or its agents that areagent upon request and by March 18, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and2012 or, if such person does not sell its Holder or beneficial owner acquires an interest in the Notes within 10 Business Days after notice from that date, by the date it acquires such interest and (y) update any such information provided in clause (x) promptly upon learning that any such information previously provided has become obsolete or incorrect or is otherwise required (such obligation, the “Noteholder Reporting Obligations”). Each purchaser and subsequent transferee of Notes will be required or deemed to acknowledge that the Issuer or its agents, the Issuer will have the right to sell may provide such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation any other information concerning its investment in its the Notes to the U.S. Internal Revenue Service Service. Each purchaser and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured subsequent transferee of Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of understand and acknowledge that the Issuer (or its sole ownerhas the right, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Managerhereunder, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and compel any beneficial owner of Preferred Shares will be required an interest in a Note that fails to comply with the foregoing requirements to sell its interest in such Note, or deemed to agree to act may sell such interest on behalf of such owner as provided in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing DateSection 2.11(b).

Appears in 1 contract

Samples: Indenture (Golub Capital BDC, Inc.)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall be deemed Debt) of Secured Debt agrees to have agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Debt as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder will timely furnish of a Subordinated Note agrees to treat the Subordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note agrees and understands that the failure to provide the Issuer, the Collateral Agent and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note represents and warrants that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder will of a Note agrees to provide the Issuer and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or deemed the Holder of such Note. In addition, each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges that the Issuer has the right under this Indenture to represent that, if it withhold on any Holder of a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note that is not a United States Tax Person, Person represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. ; or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Restricted Note represents, acknowledges and agrees that: (i) such Note may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the Retention Provider, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Restricted Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Restricted Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Restricted Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Restricted Note or cause the Restricted Note to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Restricted Notes and any other equity interests in the Issuer to be more than 90; and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Restricted Note that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Restricted Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note that is not a United States Tax Person, Person represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note acknowledges and agrees that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within the meaning j) Each Holder of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides a Subordinated Note acknowledges and agrees that, for so long as the Issuer with is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such Holder for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note acknowledges and agrees that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Restricted Note agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note, a properly completed certificate, in a form reasonably acceptable to the transferee and beneficial owner the Trustee, stating, under penalty of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 perjury, the transferor’s United States taxpayer identification number and 2.8 that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Restricted Note acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (m) Each Holder of a Note agrees that it will indemnify the Issuer, the Trustee, the Collateral Agent, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which it held such Note, notwithstanding it ceasing to be a Holder of the Note.

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Treatment and Tax Certification. (a) Each Holder (including, including for purposes of this Section 2.132.12, any beneficial owner of Notes) will treat the Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed to treat, and shall treat, the Notes, to the extent outstanding for U.S. federal income tax purposes, as debt Issuer and the Preferred Shares Notes as equity, described in each case, the “Certain U.S. Federal Income Tax Considerations” section of the Offering Circular for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or and their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or W-9, an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person), or any successors to such IRS forms) that the Issuer or its agents reasonably request (A) to permit the Issuer, the Trustee or and their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, deduction or withholding, (B) to enable the Issuer and its agents to qualify for a reduced rate of withholding or deduction in any jurisdiction from or through which they receive payments, and (C) to enable the Issuer, the Trustee and their respective agents to satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rulesany cost basis reporting obligation), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Each Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the IssuerHolder. (c) In the case of the Subordinated Notes, such Holder represents and warrants that it is a U.S. Tax Person, agrees to provide the Issuer and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax certifications specified above, the acquisition of its interest in such Notes shall be void ab initio. (d) Each Holder will (i) provide the Issuer, the Collateral Manager, the Trustee and their respective agents with any correct, complete and accurate information that the Issuer or Collateral Manager may be required to request to comply with FATCA and the Holder Reporting ObligationsCRS and will take any other actions that the Issuer, the Collateral Manager, the Trustee or their respective agents deem necessary to comply with FATCA and the CRS and (ii) update any such information provided in clause (i) promptly upon learning that any such information previously provided has become obsolete or incorrect or is otherwise required. In the event such the Holder fails for any reason to comply with the Holder Reporting Obligations provide such information, take such actions or otherwise becomes an Ineligible Tax Holderupdate such information, or to the extent that its ownership of Notes would otherwise cause (a) the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor Holder if required to do so, and/or as compensation forfor any cost, and to the extent of, any amounts withheld from payments to loss or for the benefit of the Issuer liability suffered as a result of such failure or such ownership, and (Bb) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor Holder to sell its Notes andor, if such person Holder does not sell its Notes within 10 Business Days business days after notice from the Issuer or its agentsIssuer, the Issuer will have the right to sell such Notes at in the same manner as if such Holder were a public or private sale called and conducted in any manner permitted by lawNon-Permitted Holder, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, account any taxes incurred by the Issuer in connection with such sale) to such person the Holder as payment in full for such Notes and/or (C) assign to Notes. Each such holder agrees, or by acquiring such Notes a separate CUSIP or CUSIPs. Each Holder agrees an interest in such Notes will be deemed to agree, that the Issuer, the Trustee and/or their agents Issuer or representatives Collateral Manager may (1) provide any such information and documentation concerning any other information regarding its investment in its the Notes to the U.S. Internal Revenue Service and any IRS or other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfergovernmental authority. (e) Each Holder will be required or deemed to represent thatIn the case of the Secured Notes, if it is not a United States U.S. Tax Person, such Holder represents that either: (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 10-percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(B) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; , (iib) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is a person that is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States, or (c) it has provided an IRS Form W-8ECI representing that all payments received or to be received by it on the Notes or any interest therein are effectively connected with the conduct of a trade or business in the United States. (f) Each In the case of the Subordinated Notes, such Holder represents, acknowledges and agrees that: (A) a Subordinated Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except for so long as it owns 100% of the Outstanding Subordinated Notes, none of the direct or indirect beneficial owners of any interest in such person have or ever will be required or deemed have more than 40% of the value of its interest in such person attributable to agree to provide the aggregate interest of such person in the value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes) and the Trustee with certifications necessary to establish that (b) it is not subject and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Note to withholding permit any partnership to satisfy the 100-partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax under counsel reasonably acceptable to the Tax Account Reporting RulesIssuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (B) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Subordinated Notes; (C) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note (or any interest therein) or cause the Subordinated Note (or any interest therein) to be marketed on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations; and (D) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note (or any interest therein) that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any Person that does not agree to be bound by the three preceding paragraphs or by this paragraph. (g) Each Holder represents thatIn the case of the Secured Notes, if it is not a United States U.S. Tax Person, such Holder represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (h) In the case of the Subordinated Notes, such Holder acknowledges and agrees that: (A) for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes; (within B) for so long as the meaning of the Section 385 Rules) with respect Issuer is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such expanded group; provided that such Holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis and (C) it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hi) In the case of the Subordinated Notes, such Holder: (A) agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note (or any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Trustee, stating, under penalty of perjury, the transferor’s United States taxpayer identification number and that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Code (such certificate, a “Non-Foreign Status Certificate”) and (B) acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in withholding on the amount realized on its disposition of such Note. (j) Each Holder agrees that it will indemnify the Issuer, the Trustee, the Collateral Agent and beneficial owner their respective agents from any and all damages, cost and expenses (including any amount of Preferred Shares taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which it held such Note (or any interest therein), notwithstanding it ceasing to be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 a holder of the Fiscal Agency Agreement, as in effect on the Closing DateNote.

Appears in 1 contract

Samples: Indenture (Palmer Square Capital BDC Inc.)

Treatment and Tax Certification. (a) Each Holder of a Secured Note (including, for purposes of this Section 2.13, or any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall therein) will be deemed to have represented and agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder of a Subordinated Note (or any interest therein) will timely furnish be deemed to have represented and agreed to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note (or any interest therein) will be deemed to have agreed and understood that the failure to provide the Issuer and the Collateral Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder agrees of a Subordinated Note (or any interest therein) will be deemed to have represented and warranted that no Secured Notes may it is a United States Tax Person, and will be transferred by a Person from which deemed to have agreed to provide the Issuer is disregarded as separate for U.S. federal income and the Collateral Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and will acknowledge that if it fails to provide the Issuer and the Collateral Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder of a Note will be required or deemed to represent thathave agreed to provide the Issuer and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or the holder of such Note or beneficial interest therein. In addition, if it each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges, and will be deemed to have understood and acknowledged, that the Issuer has the right under this Indenture to withhold on any holder or any beneficial owner of an interest in a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, it either: Person will be deemed to have represented that either (i) is: it is not (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (B) not a "10 percent shareholder” of " with respect to the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a871(h)(3) or Section 881(c)(3)(D) of the Code Code, or (C) a "controlled foreign corporation" that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (ii) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fiii) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Secured Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents thatof a Subordinated Note (or any interest therein) will be deemed to have represented, acknowledged and agreed that (i) such Subordinated Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (A) (x) except in the case of the Retention Holder, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (y) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (B) such person obtains written advice of Dechert LLP or Pxxx Xxxxxxxx LLP, or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer's assets, or the results of the Issuer's operations) or the Subordinated Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note (or any interest therein) or cause the Subordinated Note (or any interest therein) to be marketed, (A) on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (B) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 90 and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note (or any interest therein) that would violate any of the preceding clauses (i) through (iii) or otherwise cause the Issuer to be unable to rely on the "private placement" safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any Person that does not agree to be bound by this clause (g). (h) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, Person will be deemed to have represented and agreed that it is not, not and will not be, become a member of an "expanded group" (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation for U.S. federal income tax purposes or an entity that (ii) the Issuer is treated as a "controlled partnership" (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group; provided group or an entity disregarded as separate from such controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a disregarded entity for U.S. federal income tax purposes. (j) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, for so long as the Issuer is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory other outstanding Notes of the same Class (other than any Notes that it holds immediately after such transfer) will be fungible for U.S. federal income tax purposes. (l) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have agreed to deliver to the transferee, with a copy to the Collateral ManagerTrustee, prior to the effect transfer of such Note (or any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Collateral Trustee, stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the acquisition transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Code (such certificate, a "Non-Foreign Status Certificate"). Each holder or transfer beneficial owner of Secured Notes a Subordinated Note (or any interest therein) will not cause be deemed to have acknowledged that the failure to provide a Non-Foreign Status Certificate to the transferee may result in withholding on the amount realized on its disposition of such Secured Notes to be recharacterized as equity under the Section 385 RulesNote. (hm) Each Holder and beneficial owner of Preferred Shares a Note (or any interest therein) will be required or deemed to agree have agreed that it will indemnify the Issuer, the Collateral Trustee and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to act in accordance tax, or penalties) resulting from the failure by such Holder to comply with Sections 2.7 and 2.8 its obligations under the Note. The indemnification will continue with respect to any period during which the Holder held a Note (or any interest therein), notwithstanding the Holder ceasing to be a Holder of the Fiscal Agency Agreement, as in effect on the Closing DateNote.

Appears in 1 contract

Samples: Indenture (Golub Capital BDC 3, Inc.)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such a Note) of a Secured Note represents and agrees to treat the Secured Notes shall be deemed to have agreed to treat, and shall treat, the Notes, to the extent outstanding as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder will timely furnish of a Subordinated Note represents and agrees to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Secured Note agrees and understands that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note represents and warrants that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder will of a Secured Note agrees to provide the Issuer and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or deemed the Holder of such Note. In addition, each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges that the Issuer has the right under this Indenture to represent that, if it withhold on any Holder of a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note that is not a United States Tax Person, Person represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. ; or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Subordinated represents, acknowledges and agrees that: (i) such Subordinated Note may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the Retention Provider, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Subordinated Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note or cause the Subordinated Note to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 88; and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note that is not a United States Tax Person, Person represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note acknowledges and agrees that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within the meaning j) Each Holder of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides a Subordinated Note acknowledges and agrees that, for so long as the Issuer with is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such Holder for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note acknowledges and agrees that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Subordinated Note agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note, a properly completed certificate, in a form reasonably acceptable to the transferee and beneficial owner the Trustee, stating, under penalty of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 perjury, the transferor’s United States taxpayer identification number and 2.8 that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Subordinated Note acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (m) Each Holder of a Note agrees that it will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which it held such Note, notwithstanding it ceasing to be a Holder of the Note.

Appears in 1 contract

Samples: Indenture (GOLUB CAPITAL BDC, Inc.)

Treatment and Tax Certification. (a) Each Holder of a Secured Note (including, for purposes of this Section 2.13, or any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall therein) will be deemed to have represented and agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder of a Subordinated Note (or any interest therein) will timely furnish be deemed to have represented and agreed to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note (or any interest therein) will be deemed to have agreed and understood that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder agrees of a Subordinated Note (or any interest therein) will be deemed to have represented and warranted that no Secured Notes may it is a United States Tax Person, and will be transferred by a Person from which deemed to have agreed to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and will acknowledge that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder of a Note will be required or deemed to represent thathave agreed to provide the Issuer and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or the holder of such Note or beneficial interest therein. In addition, if it each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges, and will be deemed to have understood and acknowledged, that the Issuer has the right under this Indenture to withhold on any holder or any beneficial owner of an interest in a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, it either: Person will be deemed to have represented that either (i) is: it is not (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (B) not a "10 percent shareholder” of " with respect to the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a871(h)(3) or Section 881(c)(3)(D) of the Code Code, or (C) a "controlled foreign corporation" that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (ii) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fiii) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Secured Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents thatof a Subordinated Note (or any interest therein) will be deemed to have represented, acknowledged and agreed that (i) such Subordinated Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (A) (x) except in the case of the E.U./U.K. Retention Provider or the U.S. Retention Provider, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (y) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (B) such person obtains written advice of Dechert LLP or Cadwalader, Wxxxxxxxxx & Txxx LLP, or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer's assets, or the results of the Issuer's operations) or the Subordinated Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note (or any interest therein) or cause the Subordinated Note (or any interest therein) to be marketed, (A) on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (B) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 90 and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note (or any interest therein) that would violate any of the foregoing clauses (i) through (iii) or otherwise cause the Issuer to be unable to rely on the "private placement" safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any Person that does not agree to be bound by this clause (g). (h) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, Person will be deemed to have represented and agreed that it is not, not and will not be, become a member of an "expanded group" (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation for U.S. federal income tax purposes or an entity that (ii) the Issuer is treated as a "controlled partnership" (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group; provided group or an entity disregarded as separate from such controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a disregarded entity for U.S. federal income tax purposes. (j) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, for so long as the Issuer is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have acknowledged and agreed that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Subordinated Note (or any interest therein) will be deemed to have agreed to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note (or any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Trustee, stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Code (such certificate, a "Non-Foreign Status Certificate"). Each holder or beneficial owner of Preferred Shares a Subordinated Note (or any interest therein) will be required or deemed to agree have acknowledged that the failure to act provide a Non-Foreign Status Certificate to the transferee may result in accordance withholding on the amount realized on its disposition of such Note. (m) Each Holder of a Note (or any interest therein) will be deemed to have agreed that it will indemnify the Issuer, the Trustee and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by such Holder to comply with Sections 2.7 and 2.8 its obligations under the Note. The indemnification will continue with respect to any period during which the Holder held a Note (or any interest therein), notwithstanding the Holder ceasing to be a Holder of the Fiscal Agency Agreement, as in effect on the Closing DateNote.

Appears in 1 contract

Samples: Indenture (Golub Capital Private Credit Fund)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the Secured Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed agreed, to treat, and shall treat, the NotesIssuer, to the extent outstanding for U.S. federal income tax purposes, as debt Co-Issuer and the Preferred Shares Notes as equity, described in each case, the "Certain U.S. Federal Income Tax Considerations" section of the Offering Circular for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or W-9, an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person), or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting RulesCayman FATCA Legislation), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its their agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will provide the Issuer or its agents with any correct, complete and accurate information or documentation that may be required for the Issuer to comply with FATCA, the Holder Reporting ObligationsCayman FATCA Legislation and the CRS and to prevent the imposition of U.S. federal withholding tax under FATCA on payments to or for the benefit of the Issuer. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations provide such information or otherwise becomes an Ineligible Tax Holderdocumentation, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail be subject to achieve Tax Account Reporting Rules Complianceany tax under FATCA, (A) the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, for any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) Notes. The Issuer may also assign to each such Notes Note a separate CUSIP or CUSIPssecurities identifier in the Issuer’s sole discretion. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the Cayman Islands Tax Information Authority, the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancecomplies with FATCA and the Cayman FATCA Legislation. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Personperson for U.S. federal income tax purposes, it eitherit: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 1 contract

Samples: Supplemental Indenture (Owl Rock Capital Corp)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes) of Secured Notes shall be deemed agrees to have agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder will timely furnish of a Subordinated Note agrees to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note agrees and understands that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note represents and warrants that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder will of a Note agrees to provide the Issuer, the Trustee and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or deemed the Holder of such Note. In addition, each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges that the Issuer has the right under this Indenture to represent that, if it withhold on any Holder of a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note that is not a United States Tax Person, Person represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. ; or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Restricted Note represents, acknowledges and agrees that: (i) such Note may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the Retention Holder, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Restricted Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Restricted Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Restricted Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Restricted Note or cause the Restricted Note to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Restricted Notes and any other equity interests in the Issuer to be more than 90; and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Restricted Note that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Restricted Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note that is not a United States Tax Person, Person represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note acknowledges and agrees that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within the meaning j) Each Holder of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides a Subordinated Note acknowledges and agrees that, for so long as the Issuer with is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such Holder for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note acknowledges and agrees that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Restricted Note agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note, a properly completed certificate, in a form reasonably acceptable to the transferee and beneficial owner the Trustee, stating, under penalty of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 perjury, the transferor’s United States taxpayer identification number and 2.8 that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Restricted Note acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (m) Each Holder of a Note agrees that it will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which it held such Note, notwithstanding it ceasing to be a Holder of the Note.

Appears in 1 contract

Samples: Indenture (Golub Capital BDC 3, Inc.)

Treatment and Tax Certification. (a) Each The Issuer, the Co-Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treattreat the Secured Notes as debt of the Issuer for United States federal, the Notesand, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by any relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal, accounting and ratings purposes. The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (b) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any tax forms or the properly completed and signed applicable Tax certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, U.S. Person) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications meet its Noteholder Reporting Obligations may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuerwithholding. (c) Each Holder will comply purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be deemed to have agreed to provide the Issuer and Trustee (i) any information as is necessary (in the sole determination of the Issuer or the Trustee, as applicable) for the Issuer and the Trustee to determine whether it is a specified United States person as defined in Section 1473(3) of the Code (a "specified United States person") or a United States owned foreign entity as described in Section 1471(d)(3) of the Code (a "United States owned foreign entity") and (ii) any additional information that the Issuer or its agent requests in connection with FATCA. If it is a specified United States person or a United States owned foreign entity, it also hereby agrees to (x) provide the Holder Reporting ObligationsIssuer and Trustee its name, address, U.S. taxpayer identification number, if it is a United States owned foreign entity, the name, address and taxpayer identification number of each of its "substantial United States owners" (as defined in Section 1473(2) of the Code) and any other information requested by the Issuer or its agent upon request and (y) update any such information provided in clause (x) promptly upon learning that any such information previously provided has become obsolete or incorrect or is otherwise required. In It understands and acknowledges that the event such Holder Issuer has the right to compel the sale of any Notes held by a Noteholder that fails for any reason to comply with the Holder foregoing requirements (such obligations, the "Noteholder Reporting Obligations Obligations"). It understands and acknowledges that, in the event that it fails to provide such information or otherwise becomes an Ineligible Tax Holdertake such actions, or to the extent that its ownership of Notes would otherwise cause (A) the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to withhold on "passthru payments" (Aas defined in the Code) and to withhold on amounts otherwise distributable to the investor any Holder as compensation for, and to the extent of, for any amounts amount withheld from payments to or for the benefit of the Issuer or the underlying issuer as a result of such failure or such ownershipfailure, and (B) notwithstanding anything to the contrary, to the extent necessary to avoid an adverse effect on the Issuer or any Holder of Notes as a result of such failure or such ownershipfailure, the Issuer will have the right to compel the investor Holder to sell its Notes andor, if such person the Holder does not sell its Notes within 10 Business Days after notice from the Issuer or an authorized delegate acting on its agentsbehalf, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, account any taxes incurred by the Issuer in connection with such sale) to such person the Holder as payment in full for such Notes and/or (C) subject to the indemnity described in Section 7.17(j)). The Issuer may also assign to all or a portion of each such Notes Note a separate CUSIP number or CUSIPsnumbers in the Issuer's sole discretion. Each Holder agrees It understands and acknowledges that the Issuer, the Trustee and/or their Issuer or its agents (or representatives any relevant intermediary) on its behalf may (1) provide any such information and documentation any other information concerning its investment in its the Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules ComplianceIRS. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 1 contract

Samples: Indenture (JMP Group Inc.)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the NotesDebt), by acceptance of such Notes Debt or an interest in such Notes Debt shall be deemed to have agreed to treat, and shall treat, the NotesDebt, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Collateral Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person, or any successors to such IRS forms) that the Issuer, the Collateral Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes Debt would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes Debt and, if such person does not sell its Notes Debt within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes Debt at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes Debt and/or (C) assign to such Notes Debt a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Collateral Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes Debt to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes Debt may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Collateral Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes Debt so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Collateral Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes Debt in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes Debt will not cause such Secured Notes Debt to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 1 contract

Samples: Indenture and Security Agreement (Blue Owl Technology Finance Corp. II)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the Secured Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed agreed, to treat, and shall treat, the NotesIssuer, to the extent outstanding for U.S. federal income tax purposes, as debt Co-Issuer and the Preferred Shares Notes as equity, described in each case, the “Certain U.S. Federal Income Tax Considerations” section of the Offering Circular for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or W-9, an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person), or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting RulesCayman FATCA Legislation), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its their agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will provide the Issuer or its agents with any correct, complete and accurate information or documentation that may be required for the Issuer to comply with FATCA, the Holder Reporting ObligationsCayman FATCA Legislation and the CRS and to prevent the imposition of U.S. federal withholding tax under FATCA on payments to or for the benefit of the Issuer. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations provide such information or otherwise becomes an Ineligible Tax Holderdocumentation, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail be subject to achieve Tax Account Reporting Rules Complianceany tax under FATCA, (A) the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, for any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) Notes. The Issuer may also assign to each such Notes Note a separate CUSIP or CUSIPssecurities identifier in the Issuer’s sole discretion. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the Cayman Islands Tax Information Authority, the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancecomplies with FATCA and the Cayman FATCA Legislation. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Personperson for U.S. federal income tax purposes, it eitherit: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” with respect to the holder or any beneficial owners of the Issuer (or its sole owner, as applicable) Preferred Shares within the meaning of section 871(h)(3) or section 881(c)(3)(B) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (holder or its sole owner, as applicable) any beneficial owners of the Preferred Shares within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within in the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in payments on the United StatesNotes. (fe) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesFATCA. (gf) Each Holder represents that, if that it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trustsdefined in Treasury regulations section 1.385-1(c)(4), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or which a beneficial owner of Preferred Shares is a “covered member” (B) as defined in Treasury regulations section 1.385-1(c)(2)), except to the extent that the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; its agents have provided that such beneficial owner may acquire Secured Notes in violation with an express waiver of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesrepresentation. (hg) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date and the First Refinancing Date, as applicable.

Appears in 1 contract

Samples: Second Supplemental Indenture (Blue Owl Capital Corp)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes) of Secured Notes shall be deemed agrees to have agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder will timely furnish of a Subordinated Note agrees to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note agrees and understands that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note represents and warrants that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form), and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) Each Holder will of a Note agrees to provide the Issuer, the Trustee and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Note or deemed the Holder of such Note. In addition, each purchaser and subsequent transferee of such Notes (or any interest therein) understands and acknowledges that the Issuer has the right under this Indenture to represent that, if it withhold on any Holder of a Note that fails to comply with FATCA. (f) Each Holder of a Secured Note that is not a United States Tax Person, Person represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. ; or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Subordinated Note represents, acknowledges and agrees that: (i) such Note may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the Retention Holder, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Subordinated Notes; (iii) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note or cause the Subordinated Note to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 90; and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note that is not a United States Tax Person, Person represents and acknowledges that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note acknowledges and agrees that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or an entity that is any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within the meaning j) Each Holder of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides a Subordinated Note acknowledges and agrees that, for so long as the Issuer with is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such Holder for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note acknowledges and agrees that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such Holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hl) Each Holder of a Subordinated Note agrees to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note, a properly completed certificate, in a form reasonably acceptable to the transferee and beneficial owner the Trustee, stating, under penalty of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 perjury, the transferor’s United States taxpayer identification number and 2.8 that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Subordinated Note acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (m) Each Holder of a Note agrees that it will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by it to comply with its obligations under the Note. It acknowledges that the indemnification will continue with respect to any period during which t held such Note, notwithstanding it ceasing to be a Holder of the Note.

Appears in 1 contract

Samples: Indenture (Golub Capital BDC 3, Inc.)

Treatment and Tax Certification. (a) Each Holder (includingwhich includes, for purposes of this Section 2.132.12, any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall a Note) of a Secured Note (or any interest therein) will be deemed to have represented and agreed to treat, and shall treat, treat the Notes, to the extent outstanding Secured Notes as indebtedness for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder of a Subordinated Note (or any interest therein) will timely furnish be deemed to have represented and agreed to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes. (c) Each Holder of a Note (or any interest therein) will be deemed to agree and understand that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder of a Subordinated Note (or any interest therein) represents and warrants, and will be deemed to have represented and warranted, that it is a United States Tax Person, agrees that no Secured Notes may be transferred by a Person from which to provide the Issuer is disregarded as separate for U.S. federal income and the Trustee (and any of their agents) with a correct, complete and properly executed IRS Form W-9 (or applicable successor form) and acknowledges that if it fails to provide the Issuer and the Trustee (and any of their agents) with the properly completed and signed tax purposescertifications specified above, unless a written opinion the acquisition of tax counsel of nationally recognized standing in the United States experienced its interest in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will Note shall be characterized as debt for U.S. federal income tax purposes immediately following such transfervoid ab initio. (e) [reserved]. (f) Each Holder will be required of a Secured Note (or deemed to represent that, if it any interest therein) that is not a United States Tax Person, Person represents and will be deemed to have represented that either (A) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; , (iiB) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fC) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Notes are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Subordinated Note (or any interest therein) represents, acknowledges, and agrees, and will be deemed to have represented, acknowledged and agreed that: (i) such Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (A) none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes and any other equity interests in the Issuer, and (B) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes or any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or King & Spalding LLP, or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (ii) such Note (or any interest therein) may not be acquired, and no Holder of such Note may sell, transfer, assign, participate, pledge or otherwise dispose of such Note (or any interest therein) or cause the Subordinated Note (or any interest therein) to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of Subordinated Notes and any other equity interests in the Issuer to be more than 90; (iii) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations or such Notes); and (iv) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of such Note (or any interest therein) that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in such Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph. (h) Each Holder of a Secured Note (or any interest therein) that is not a United States Tax Person, it is notPerson represents and acknowledges, and will be deemed to have represented and acknowledged, that it is not be, and will not become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) [reserved]. (j) Each holder or an entity that beneficial owner of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within k) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the meaning of the Section 385 Rules) with respect Issuer is disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from such expanded group; provided that such holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (l) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (hm) Each Holder of a Subordinated Note (or any interest therein) agrees, and beneficial owner of Preferred Shares will be required or deemed to agree have agreed, to act deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Note (or any interest therein), a properly completed certificate, in accordance with Sections 2.7 a form reasonably acceptable to the transferee and 2.8 the Trustee, stating, under penalty of perjury, the transferor’s United States taxpayer identification number and that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Fiscal Agency AgreementCode (such certificate, as a “Non-Foreign Status Certificate”). Each Holder of a Subordinated Note (or any interest therein) acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in effect withholding on the Closing Dateamount realized on its disposition of such Note. (n) Each Holder of a Note (or any interest therein) will indemnify the Issuer, the Trustee, and their respective agents from any and all damages, cost and expenses (including any amount of taxes, fees, interest, additions to tax, or penalties) resulting from the failure by such Holder to comply with FATCA or its obligations under the Note. The indemnification will continue with respect to any period during which the Holder held a Note (or any interest therein), notwithstanding the Holder ceasing to be a Holder of the Note.

Appears in 1 contract

Samples: Indenture (Monroe Capital Income Plus Corp)

Treatment and Tax Certification. (a) Each Holder of Debt (or any interest therein) (including, for purposes of this Section 2.132.12 (Treatment and Tax Certification), any beneficial owner of the Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed to treat, the relevant Debt) represents and shall treat, agrees that it has read the Notes, to summary of the extent outstanding for U.S. federal income tax purposes, considerations under the heading “Certain U.S. Federal Income Tax Considerations” in the Offering Circular and shall treat the Debt as debt and the Preferred Shares as equity, in each case, or equity for all U.S. federal, state and local income tax purposes in a manner consistent with the treatment of such Debt by the Issuer as described under the heading “Certain U.S. Federal Income Tax Considerations” in the Offering Circular and will take no action inconsistent with such treatment treatment, unless otherwise required by lawany relevant taxing authority. (b) Each Holder will timely furnish of Debt (or any interest therein) acknowledges and agrees that the Issuer, failure to provide the Issuer and the Collateral Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Debt, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuerwithholding. (c) Each Holder will comply with of a Subordinated Note (or any interest therein) represents and warrants that, for so long as it owns less than 100% of the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Outstanding Subordinated Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalfother Class of Note characterized as equity for U.S. federal income tax purposes), it is a United States Tax Person, agrees to provide the Issuer and the Collateral Trustee (and any of their agents) is authorized to with a correct, complete and properly executed IRS Form W-9 (A) withhold amounts otherwise distributable to the investor as compensation foror applicable successor form), and acknowledges that if it fails to the extent of, any amounts withheld from payments to or for the benefit of provide the Issuer as a result and the Collateral Trustee (and any of such failure or such ownership, their agents) with the properly completed and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownershipsigned tax certifications specified above, the Issuer will have the right to compel the investor to sell acquisition of its Notes and, if interest in such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules ComplianceDebt shall be void ab initio. (d) Each Holder of Debt (or any interest therein) agrees to provide the Issuer and any relevant intermediary with any information or documentation that is required under FATCA or that the Issuer or relevant intermediary deems appropriate to enable the Issuer or relevant intermediary to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to FATCA in respect of such Debt or the holder of such Debt or beneficial interest therein. In addition, each purchaser and subsequent transferee of such Debt (or any interest therein) acknowledges and agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion has the right under the Indenture to withhold on any holder or any beneficial owner of tax counsel of nationally recognized standing an interest in the United States experienced in such matters is delivered Debt that fails to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfercomply with FATCA. (e) Each Holder will of a Subordinated Note held in the form of a Global Note acknowledges and agrees that (i) such Note may not be required transferred unless the transferee shall have furnished the Issuer and the Collateral Trustee a fully executed Daisy Chain Letter, (ii) any transfer made in violation of the foregoing shall be void ab initio and (iii) prior to any transfer of such Global Note to any person (“Subsequent Transferee”), the Holder shall notify the Subsequent Transferee of the Subsequent Transferee’s obligation to furnish a Daisy Chain Letter to the Collateral Trustee and the Issuer. (f) Each Holder of Secured Debt (or deemed to represent thatany interest therein), if it is not a United States Tax Person, represents that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fc) Each Holder will it has provided an IRS Form W-8ECI representing that all payments received or to be required received by it on the Secured Debt are effectively connected with the conduct of a trade or deemed to agree to provide business in the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesUnited States. (g) Each Holder represents of a Subordinated Note (or any interest therein) represents, acknowledges and agrees, and will be deemed to have represented, acknowledged and agreed, that: (A) such Subordinated Note (or any interest therein) may not be acquired or owned by any person that is classified for U.S. federal income tax purposes as a partnership, Subchapter S corporation or grantor trust unless (i) (a) except in the case of the U.S. Retention Holder for so long as it holds 100% of the Outstanding Subordinated Notes, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes (and any other interest treated as equity in the Issuer for U.S. federal income tax purposes), and (b) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any other equity interests of the Issuer to permit any partnership to satisfy the 100 partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (ii) such person obtains written advice of Dechert LLP or Cadwalader, Wickersham & Taft LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation; (B) it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets, or the results of the Issuer’s operations) or the Subordinated Notes; (C) it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of the Subordinated Note (or any interest therein) or cause the Subordinated Note (or any interest therein) to be marketed, (i) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (ii) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any other equity interests in the Issuer to be more than 90; and (D) it acknowledges and agrees that any sale, transfer, assignment, participation, pledge, or other disposition of the Subordinated Note (or any interest therein) that would violate any of the foregoing clauses (A) through (C) or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in the Subordinated Note to any Person that does not agree to be bound by this paragraph. (h) Each Holder of Secured Debt (or any interest therein) that is not a United States Tax Person, it is notPerson represents and acknowledges, and will be deemed to have represented and acknowledged, that it is not be, and will not become a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if either (i) the Issuer is an entity disregarded as separate from such domestic corporation, directly or indirectly (through one or more entities that are treated corporation for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rulesregulations) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation controlled partnership for U.S. federal income tax purposes. (i) Each Holder of a Subordinated Note (or an entity that any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the Issuer is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Notes (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such transfer would result in the Issuer being treated as a “controlled partnership” disregarded entity for U.S. federal income tax purposes. (within j) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, for so long as the meaning of the Section 385 Rules) with respect Issuer is disregarded as separate from it for U.S. federal income tax purposes, Debt may not be transferred by it (except to a person that is disregarded as separate from such expanded group; provided that such holder or beneficial owner may acquire Secured Notes in violation for U.S. federal income tax purposes), unless it has received written advice of this restriction if it provides the Issuer with Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (k) Each Holder of a Subordinated Note (or any interest therein) acknowledges and agrees, and will be deemed to have acknowledged and agreed, that, it shall not transfer any Secured Debt (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Debt and substance satisfactory other outstanding Debt of the same Class (other than any Debt that it holds immediately after such transfer) will be fungible for U.S. federal income tax purposes. (l) Each Holder of a Subordinated Note (or any interest therein) agrees, and will be deemed to have agreed, to deliver to the transferee, with a copy to the Collateral ManagerTrustee, prior to the effect transfer of such Debt (or any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Collateral Trustee, stating, under penalty of perjury, the transferor’s United States taxpayer identification number and that the acquisition transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Code (such certificate, a “Non-Foreign Status Certificate”). Each holder or transfer beneficial owner of Secured Notes will not cause a Subordinated Note (or any interest therein) acknowledges that the failure to provide a Non-Foreign Status Certificate to the transferee may result in withholding on the amount realized on its disposition of such Secured Notes to be recharacterized as equity under the Section 385 RulesDebt. (hm) Each Holder of Debt (or any interest therein) agrees to indemnify the Issuer, the Collateral Trustee, the Loan Agent and beneficial owner their respective agents from any and all damages, cost and expenses (including any amount of Preferred Shares taxes, fees, interest, additions to tax, or penalties) resulting from the failure by such Holder to comply with FATCA or its obligations under the Debt. The indemnification will continue with respect to any period during which the Holder held Debt (or any interest therein), notwithstanding the Holder ceasing to be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 a Holder of the Fiscal Agency Agreement, as in effect on the Closing DateDebt (or any interest therein).

Appears in 1 contract

Samples: Indenture and Security Agreement (Varagon Capital Corp)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Secured Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed agreed, to treat, and shall treat, the Notes, Secured Notes as debt for all U.S. federal and to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will take no action inconsistent with purposes, to the extent such treatment Secured Notes are treated as outstanding for such purposes, unless otherwise required by lawany relevant taxing authority. (b) Each Holder will timely furnish the Issuerand beneficial owner of Secured Notes other than Potential Equity Notes, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case by acceptance of a Person that is a United States Tax person such Notes or an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person, or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced interest in such matters is delivered to the TrusteeNotes, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will shall be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent thatrepresent, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States warrant and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents covenant that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” (within the meaning of the regulations issued under Section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Potential Equity Notes or Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the regulations issued under Section 385 Rulesof the Code) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the regulations issued under Section 385 Rulesof the Code) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized treated as equity under the regulations issued under Section 385 Rulesof the Code. (hc) Each Holder and beneficial owner of Secured Notes agrees (i) except as prohibited by applicable law, to obtain and provide the Issuer and the Trustee (including their agents and representatives), as applicable, with information or documentation, and to update or correct such information or documentation, as may be necessary or helpful (in the sole determination of the Issuer, the Trustee or their agents or representatives, as applicable) to enable the Issuer to achieve Tax Account Reporting Rules Compliance (the obligations undertaken pursuant to this clause (i), the “Holder Tax Obligations”), (ii) that the Issuer and/or the Trustee or their agents or representatives may (A) provide such information and documentation and any other information concerning its investment in such Notes to the Cayman Islands Tax Information Authority, the IRS and any other relevant tax authority and (B) take such other steps as they deem necessary or helpful to achieve Tax Account Reporting Rules Compliance, including withholding on “passthru payments” (as defined in the Code), and (iii) that if it fails for any reason to comply with the Holder Tax Obligations, or the Issuer otherwise reasonably determines that such beneficial owner’s direct or indirect acquisition, holding or transfer of an interest in such Notes would cause the Issuer to be unable to achieve Tax Account Reporting Rules Compliance, the Issuer shall have the right, in addition to withholding on passthru payments made to the applicable Holder of Notes or any agent or intermediary through which its Notes are held, to (x) compel it to sell its interest in such Notes, (y) after 10 Business Days’ notice from the Issuer (or its agents) sell such interest on its behalf and/or (z) assign to such Notes a separate CUSIP or CUSIPs. Moreover, each such beneficial owner will agree, or be deemed to agree, to indemnify the Issuer, the Trustee and the other beneficial owners of Notes for all damages, costs and expenses that result from the failure of such Person to comply with its Holder Tax Obligations. This indemnification will continue even after the Person ceases to have an ownership interest in the Notes. (d) Each Holder of Secured Notes that are not Potential Equity Notes (or any interest therein) that is not a United States Tax Person will make, or by acquiring such Notes will be deemed to make, a representation to the effect that either (i) it is not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code), a 10% shareholder of the issuer of such Notes (as determined for U.S. federal income tax purposes) within the meaning of Section 871(h)(3) of the Code, or a controlled foreign corporation within the meaning of Section 957(a) of the Code that is related to the issuer of such Notes (as determined for U.S. federal income tax purposes) within the meaning of Section 881(c)(3) of the Code, (ii) it has provided an IRS Form W-8BEN or W-8BEN-E (or successor form) representing that it is a person that is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States, or (iii) it has provided an IRS Form W-8ECI (or successor form) representing that all payments received or to be received by it on such Notes are effectively connected with the conduct of a trade or business in the United States. (e) In the case of the Potential Equity Notes: (i) It is a United States Tax Person and a properly completed and signed IRS Form W-9 (or applicable successor form) is attached hereto. It agrees and acknowledges that the failure to provide such form may result in withholding from payments in respect of its Potential Equity Notes, including U.S. federal withholding or backup withholding, and that any purported transfers made in violation of the foregoing requirements shall be void ab initio. (ii) Unless 100% of the Potential Equity Notes and the Preferred Shares are being acquired by it and continue to be so held, it must either (i) not be treated as a partnership, grantor trust or S corporation for United States federal income tax purposes (a “Flowthrough Entity”), or (ii) be a Flowthrough Entity (provided that none of the direct or indirect beneficial owners of any interest in such Person has, or will have, 40% or more of the value of their interest in such Person attributable to the aggregate interest of such Person in the Potential Equity Notes and the Preferred Shares) (each person that is described in, and makes the representation in either clause (i) or (ii), a “Direct Tax Owner” with respect to the Potential Equity Notes or the Preferred Shares); unless written advice of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Issuer and the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that such status will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (iii) It agrees that no transfer, sale, assignment, participation, pledge or other disposition (a “Transfer”) of an interest in the Potential Equity Notes (or any derivative interest therein) shall be effective, and no such Transfer shall be recognized, if (i) such Transfer results in there being more than 98 Direct Tax Owners in the aggregate of the Preferred Shares and Potential Equity Notes or such Transfer would otherwise cause the Issuer to be treated as a publicly traded partnership as defined in Section 7704(b) of the Code or (ii) such Notes are Transferred on or through (A) an established securities market or (B) a secondary market (or the substantial equivalent thereof) within the meaning of Section 7704(b) of the Code (and the Treasury Regulations thereunder), unless written advice of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that such acquisition, ownership or Transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (iv) It agrees to provide (A) any transferee of its Potential Equity Notes a certification that it is a United States Tax Person (such as a properly completed and signed IRS Form W-9 (or applicable successor form)) in accordance with Section 1446(f)(2) of the Code and any applicable Treasury Regulations thereunder such that the transferee will not be obligated to withhold under Section 1446(f)(1) of the Code, and (B) such forms, documentation, proof of payment or other certifications as reasonably required by the Issuer or the Trustee to determine that such transferee has complied with Section 1446(f) of the Code (ignoring for this purpose Section 1446(f)(4) of the Code), and any similar provision of state, local or non-U.S. law. It agrees that the Issuer or the Trustee may provide such information and any other information concerning its investment in such Potential Equity Notes to the IRS. (f) Each Holder and beneficial owner of Secured Notes, by acceptance of such Notes or an interest in such Notes, shall be deemed to understand and acknowledge that failure to provide the Applicable Issuer, the Trustee or any Paying Agent with the properly completed and signed applicable tax certifications (generally, in the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a United States Tax Person or, in the case of Notes that are not Potential Equity Notes, the applicable IRS Form W-8 (or applicable successor form) (together with all appropriate attachments) in the case of a Person that is not a United States Tax Person) may result in withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding. (g) Each Holder and beneficial owner of Secured Notes, by acceptance of such Notes or an interest in such Notes, shall be deemed to agree to act provide the Issuer and the Trustee any U.S. federal income tax form, certification or other information or documentation that is required or is otherwise necessary (in accordance with Sections 2.7 and 2.8 the sole determination of the Fiscal Agency AgreementIssuers, the Trustee, or other agent of the Issuers, as applicable) (i) to enable the Issuers, the Trustee, or other agent of the Issuers to determine their duties and liabilities with respect to any taxes they may be required to withhold pursuant to the Code in effect respect of such Notes or the Holder of such Notes or beneficial interest therein, (ii) to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which either Issuer receives payments on its assets or (iii) to enable the Closing DateIssuers, the Trustee, or other agent of the Issuers to satisfy reporting and other obligations under the Code and Treasury regulations, including any cost basis reporting obligations. Each holder and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to agree that the Issuers may provide such information and any other information concerning its investment in the Notes to the IRS. In addition, it understands and acknowledges that the Issuer has the right under this Indenture to withhold from any beneficial owner of an interest in a Note that fails to establish an exemption from U.S. federal withholding tax under Sections 1471 through 1474 of the Code.

Appears in 1 contract

Samples: Indenture and Security Agreement (Owl Rock Capital Corp)

Treatment and Tax Certification. (a) Each The Issuer, the Co-Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal, accounting and ratings purposes. (b) The Issuer, the Co-Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person that is a United States Tax person Person or an the applicable IRS Form W-8 W- 8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, Person) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications comply with its Holder Tax Obligations may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuerwithholding. (cd) Each purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be deemed to have agreed to provide the Issuer, the Trustee, the Collateral Manager, any relevant intermediary or other agent of the Issuer any information or documentation, to correct and update such information and to take such action that is required under the Tax Account Reporting Rules and/or to avoid the imposition of tax under FATCA (including, but not limited to, in the case of Certificated Notes only, a properly completed and executed "entity self-certification form" or "individual self-certification form" (in the forms published by the Cayman Islands Department for International Tax Cooperation, which forms can be obtained at hxxx://xxx.xxx.xxx.xx/xxx/FATCA_Legislation.pdf)) ("Holder Tax Obligations"). Each purchaser and subsequent transferee of Notes will comply with be required or deemed to acknowledge that the Holder Reporting ObligationsIssuer may provide such information and any other information concerning its investment in the Notes to the Cayman Islands Tax Information Authority, the IRS and any other relevant taxing authority. In Each purchaser and subsequent transferee of Notes will be required or deemed to acknowledge that the event such Holder Issuer has the right, hereunder, to compel any beneficial owner of an interest in a Note that fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holderforegoing requirements to sell its interest in such Note, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting sell such interest on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result behalf of such failure or such ownership, owner following the procedures and (B) timeframe relating to the extent necessary to avoid an adverse effect on the Non-Permitted Holders specified in Section 2.11(b). The Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) may also assign to such Notes a separate CUSIP or CUSIPsCUSIPs number in the Issuer's sole discretion. Each Holder agrees In addition, each holder of Notes (or any interest therein) will be required oris deemed to understand and acknowledge that theagree and represent that (1) Issuer has the right under this Indenture to (1) withhold from any holder or beneficial owner of an interest in Secured Notes that fails to comply with FATCA, and (2) the Issuer, the Collateral Manager and/or the Trustee and/or or their agents or representatives may (1A) provide any information and documentation concerning its investment provided to itthem in its connection with the Tax Account Reporting Rules regarding such Notes to the U.S. Internal Revenue Service Cayman Islands Tax Information Authority, the IRS and any other relevant tax authority authority. and (2B) take such other steps as they deem necessary or helpful to ensure that for the Issuer achieves to comply with the Tax Account Reporting Rules Compliance. (d) Rules. Each Holder agrees that no of Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered agrees to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer.indemnify the (e) Each Holder will be required and beneficial owner of a Secured Note represents, or is deemed to represent represent, that, if it is not a United States Tax Person, it either: is not, and will not be, a member of an "expanded group" (within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) is: the Issuer is an entity disregarded as separate from such domestic corporation for U.S. federal income tax purposes or (ii) the Issuer is either (A) a "controlled partnership" (within the meaning of the Section 385 Rules) with respect to such expanded group and such domestic corporation is an "expanded group partner" (within the meaning of the Section 385 Rules) with respect to the Issuer or (B) disregarded as separate from an entity that is a controlled partnership with respect to such expanded group and in which such domestic corporation is an "expanded group partner"; provided that it may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized tax counsel experienced in such matters reasonably acceptable to the Issuer to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be treated as equity pursuant to Section 385 of the Code and the Section 385 Rules. (f) Each Holder and beneficial owner of a Secured Note acknowledges, or is deemed to acknowledge, that it may be subject to U.S. federal withholding tax with respect to payments on such Secured Note if it is not a United States Person, unless either (i) it is not (A) a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (B) not a “10 10-percent shareholder” of the Issuer shareholder (or its sole owner, as applicable) within the meaning of section 871(h)(3871(h)(3)(B)) of the Code; and issuer of the Notes (as determined for U.S. federal income tax purposes), or (C) not a controlled foreign corporation” corporation within the meaning of Section 957(a) of the Code that is related to the Issuer issuer of the Notes (or its sole owner, as applicabledetermined for U.S. federal income tax purposes) within the meaning of section Section 881(c)(3)(C) of the Code; , (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN, W-8BEN-E representing or W-8IMY (or successor form) certifying that it is a Person that is (or the Persons for which it is acting as an intermediary are) eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. , or (fiii) Each Holder will it has provided an IRS Form W-8ECI (or successor form) representing that all payments received or to be required or deemed to agree to provide received by it from the Issuer and are effectively connected with the Trustee with certifications necessary to establish that it is not subject to withholding tax under conduct of trade or business in the Tax Account Reporting RulesUnited States by the beneficial owner. (g) Each Holder represents thatand beneficial owner of a Subordinated Note (or any interest therein) shall agree, if it or by acquiring a Subordinated Note (or an interest therein) will be deemed to have agreed, to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Subordinated Note (or any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Trustee, stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the transferor is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” foreign person within the meaning of the Section 385 Rules1446(f)(2) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to Code (such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as certificate, a “controlled partnership” (within the meaning "Non-Foreign Status Certificate"). Each transferor of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.a

Appears in 1 contract

Samples: Supplemental Indenture (Garrison Capital Inc.)

Treatment and Tax Certification. (a) Each Holder of a Secured Note (including, for purposes of this Section 2.132.12, any a beneficial owner of the Notes)an interest therein) agrees, or by acceptance of such Notes acquiring a Secured Note (or an interest in such Notes shall therein) will be deemed to have agreed to treat, and shall treat, the Notesagree, to the extent outstanding for U.S. federal income tax purposes, treat any such Secured Notes as debt indebtedness and the Preferred Shares Subordinated Notes as equity, in each case, equity for all U.S. federal, state and local income and franchise tax purposes and will take no action inconsistent with such treatment unless purposes, except as otherwise required by law. (b) Each Holder of a Subordinated Note (or an interest therein) agrees, or by acquiring a Subordinated Note (or an interest therein) will timely furnish be deemed to agree, to treat the IssuerSubordinated Notes as equity for U.S. federal, state and local income and franchise tax purposes, except as otherwise required by law. (c) Each Holder of a Note (or an interest therein) acknowledges, or by acquiring a Note (or an interest therein) will be deemed to acknowledge, that the failure to provide the Issuer and the Trustee or (and any of their respective agents agents) with any the properly completed and signed tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person person that is a United States Tax person Person or an applicable the appropriate IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person person that is not a United States Tax person, or any successors to such IRS formsPerson) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder agrees of a Secured Note (or an interest therein) that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax PersonPerson represents, or by acquiring a Secured Note (or an interest therein) will be deemed to represent, that either (a) it either: is not (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (Bii) not a “10 percent shareholder” of with respect to the Issuer (or its sole owner, as applicable) within the meaning of section Section 871(h)(3) or Section 881(c)(3)(D) of the Code; and , or (Ciii) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section Section 881(c)(3)(C) of the Code; ; (iib) has provided an IRS Form W-8ECI representing it is a person that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States; or (c) it has provided an IRS Form W-8ECI representing that all payments received or to be received by it on the Notes are effectively connected with the conduct of a trade or business in the United States. (e) Each Holder of a Subordinated Note (or an interest therein) represents, or by acquiring a Subordinated Note or an interest therein will be deemed to represent, that it is a United States Tax Person and has provided a valid IRS Form W-9 (or applicable successor form). (f) Each Holder transferor of a Subordinated Note (or an interest therein) agrees, or by acquiring a Subordinated Note or an interest therein will be required or deemed to agree agree, to deliver to the transferee, with a copy to the Trustee, prior to the transfer of such Subordinated Note (and any interest therein), a properly completed certificate, in a form reasonably acceptable to the transferee and the Issuer, stating, under penalty of perjury, the transferor’s United States taxpayer identification number and that the transferor is not a foreign person within the meaning of Section 1446(f)(2) of the Code (such certificate, a “Non-Foreign Status Certificate”). Each transferor of a Subordinated Note (or an interest therein) acknowledges, or by acquiring a Subordinated Note (or an interest therein) will be deemed to acknowledge, that the failure to provide a Non-Foreign Status Certificate to the Issuer and transferee may result in withholding on the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rulesamount realized on its disposition of a Subordinated Note. (g) Each Holder of a Subordinated Note (or an interest therein) represents thatand agrees, or by acquiring a Subordinated Note (or an interest therein) will be deemed to represent and agree, that if classified as a partnership, Subchapter S corporation or grantor trust, it will not acquire or own such Note unless (I) (A) except in the case of the U.S. Retention Holder for so long as it owns 100% of the Outstanding Subordinated Notes, none of the direct or indirect beneficial owners of any interest in such person have or ever will have more than 40% of the value of its interest in such person attributable to the aggregate interest of such person in the combined value of the Subordinated Notes and any equity interests in the Issuer, and (B) it is not and will not be a principal purpose of the arrangement involving the investment of such person in any Subordinated Notes and any equity interests of the Issuer to permit any partnership to satisfy the 100-partner limitation of Treasury Regulations Section 1.7704-1(h)(1)(ii) or (II) such person obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (h) Each Holder of a Subordinated Note (or an interest therein) represents and agrees, or by acquiring a Subordinated Note or an interest therein will be deemed to represent and agree, that it will not participate in the creation or other transfer of any financial instrument or contract the value of which is determined in whole or in part by reference to the Issuer (including the amount of distributions by the Issuer, the value of the Issuer’s assets or the results of the Issuer’s operations) or the Subordinated Notes. (i) Each Holder of a Subordinated Note (or an interest therein) represents and agrees, or by acquiring a Subordinated Note or an interest therein will be deemed to represent and agree, that it will not acquire, or sell, transfer, assign, participate, pledge or otherwise dispose of a Subordinated Note (or an interest therein) or cause a Subordinated Note (or an interest therein) to be marketed, (I) on or through an “established securities market” within the meaning of Section 7704(b)(1) of the Code and Treasury Regulations Section 1.7704-1(b), including without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations or (II) if such acquisition, sale, transfer, assignment, participation, pledge or other disposition would cause the combined number of holders of the Subordinated Notes and any equity interests in the Issuer to be more than 90. (j) Each Holder of a Subordinated Note (or an interest therein) acknowledges and agrees, or by acquiring a Subordinated Note or an interest therein will be deemed to acknowledge and agree, that any sale, transfer, assignment, participation, pledge, or other disposition of a Subordinated Note (or an interest therein) that would violate any of the three preceding paragraphs above or otherwise cause the Issuer to be unable to rely on the “private placement” safe harbor of Treasury Regulations Section 1.7704-1(h) will be void and of no force or effect, and it will not transfer any interest in a Subordinated Note to any person that does not agree to be bound by the three preceding paragraphs above or by this paragraph, unless the Issuer obtains written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such violation will not cause the Issuer to be treated as a publicly traded partnership taxable as a corporation. (k) Each Holder of a Secured Note (or an interest therein) that is not a United States Tax PersonPerson represents and agrees, or by acquiring a Secured Note (or an interest therein) will be deemed to represent and agree, that it is not, not and will not be, become a member of an “expanded group” (within the meaning of the Section regulations issued under section 385 Rulesof the Code) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, corporation directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), ) owns Preferred Shares any equity interests in the Issuer and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section regulations issued under section 385 Rulesof the Code) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section regulations issued under section 385 Rulesof the Code) with respect to such expanded group; provided . (l) Each Holder a Subordinated Note (or an interest therein) acknowledges and agrees, or by acquiring a Subordinated Note (or an interest therein) will be deemed to acknowledge and agree, that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides for so long as the Issuer with is classified as a partnership for U.S. federal income tax purposes, it shall not acquire any Subordinated Note (or any other interest treated as equity in the Issuer for U.S. federal income tax purposes) if such acquisition would result in the Issuer being treated as a disregarded entity for U.S. federal income tax purposes. (m) Each Holder of a Subordinated Note (or an interest therein) acknowledges and agrees, or by acquiring a Subordinated Note (or an interest therein) will be deemed to acknowledge and agree, that if the Issuer is or ever was disregarded as separate from it for U.S. federal income tax purposes, a Note may not be transferred by it (except to a person that is disregarded as separate from it for U.S. federal income tax purposes), unless it has received written advice of Dechert LLP or an opinion of nationally recognized U.S. tax counsel reasonably acceptable to the Issuer that such transfer will not result in the Issuer becoming classified as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and will not cause the Issuer to be subject to U.S. federal income tax on a net basis. (n) Each Holder of a Subordinated Note (or an interest therein) acknowledges and agrees, or by acquiring a Subordinated Note (or an interest therein) will be deemed to acknowledge and agree, that it shall not transfer any Secured Note (except to a Person that is disregarded as separate from it for U.S. federal income tax purposes) if at any time prior to such transfer the Issuer is or ever was disregarded as separate from such holder for U.S. federal income tax purposes, unless it shall have received written advice of Dechert LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such mattersmatters that, in form immediately following such transfer, such Note and substance satisfactory to other outstanding Notes of the Collateral Manager, to the effect same Class (other than any Notes that the acquisition or transfer of Secured Notes it holds immediately after such transfer) will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesfungible for U.S. federal income tax purposes. (ho) Each Holder and beneficial owner of Preferred Shares a Note (or an interest therein) agrees, or by acquiring a Note or an interest therein will be required or deemed to agree agree, to act in accordance with Sections 2.7 indemnify the Issuer, the Trustee and 2.8 their respective agents and each of the Fiscal Agency Agreementholders of the Notes from any and all damages, as in effect on costs and expenses (including any amounts of taxes, fees, interest, additions to tax, or penalties) resulting from the Closing Datefailure by such holder to comply with its obligations under a Note. Each Holder of a Note (or any interest therein) acknowledges, or by acquiring a Note or an interest therein will be deemed to acknowledge, that this indemnification will continue with respect to any period during which it held a Note (or an interest therein) notwithstanding it ceasing to be a holder of the Note.

Appears in 1 contract

Samples: Indenture (MidCap Financial Investment Corp)

Treatment and Tax Certification. (a) Each The Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt of the Issuer for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal and accounting purposes. (b) The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, U.S. Person) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications meet its Noteholder Reporting Obligations may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments withholding. (d) Each purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be deemed to have agreed (1) to provide the Issuer and Trustee (i) any information as is necessary (in the sole determination of the Issuer or the Trustee, as applicable) for the Issuer and the Trustee to determine whether such purchaser, beneficial ownerowner or transferee is a U.S. Person or a United States owned foreign entity (as described in Section 1471(d)(3) of the Code) (“United States owned foreign entity”) and (ii) any additional information that the Issuer or its agent requests in connection with Sections 1471-1474 of the Code and (2) if it is a United States person or a United States owned foreign entity that is a Holder or beneficial owner of Notes or an interest therein as of March 18, 2012 or that acquires an interest in the Notes after March 18, 2012, be required to (x) provide the Issuer. Amounts withheld Issuer and Trustee its name, address, U.S. taxpayer identification number and any other information requested by the Issuer or its agents that areagent upon request and by March 18, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and2012 or, if such person does not sell its Holder or beneficial owner acquires an interest in the Notes within 10 Business Days after notice from that date, by the date it acquires such interest and (y) update any such information provided in clause (x) promptly upon learning that any such information previously provided has become obsolete 3 Dechert ERISA to review. or incorrect or is otherwise required (such obligation, the “Noteholder Reporting Obligations”). Each purchaser and subsequent transferee of Notes will be required or deemed to acknowledge that the Issuer or its agents, the Issuer will have the right to sell may provide such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation any other information concerning its investment in its the Notes to the U.S. Internal Revenue Service Service. Each purchaser and any other relevant tax authority subsequent transferee of Notes acknowledges and (2) take such other steps as they deem necessary or helpful to ensure agrees that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which has the Issuer is disregarded as separate for U.S. federal income tax purposesright, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Managerhereunder, to the effect that compel any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required an interest in a Note that fails to comply with the foregoing requirements to sell its interest in such Note, or deemed to agree to act may sell such interest on behalf of such owner as provided in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing DateSection 2.11(b).

Appears in 1 contract

Samples: Indenture (TICC Capital Corp.)

Treatment and Tax Certification. (a) Each The Issuer, the Co-Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the Secured Notes as debt (except that the Class C Notes shall be treated as disregarded until such time as any Class C Note is beneficially owned by a person that is not also the sole beneficial owner of the Subordinated Notes) for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal, accounting and ratings purposes. (b) The Issuer, the Co-Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, an IRS Form W-9 (or applicable successor form) in the case of a Person that is a United States Tax person or an the applicable IRS Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, ) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, provide or update or replace any such tax forms or certifications may its Holder FATCA Information will result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder agrees that no Secured Notes may purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be transferred by a Person from which deemed to have agreed to provide the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in or its agent and Trustee the United States experienced in Holder FATCA Information upon request and update any such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect Holder FATCA Information promptly upon learning that any Secured such information previously provided has become obsolete or incorrect or is otherwise required. Each purchaser and subsequent transferee of Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into acknowledge that the Issuer may provide such information and any other information concerning its investment in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related Notes to the Issuer (IRS or its sole owner, as applicable) within the meaning other taxing authority. Each purchaser and subsequent transferee of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder Notes will be required or deemed to agree to provide acknowledge that the Issuer and has the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents thatright, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Managerhereunder, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and compel any beneficial owner of Preferred Shares an interest in a Note that fails to comply with the foregoing requirements to sell its interest in such Note, or to sell such interest on behalf of such owner following the procedures and timeframe relating to Non-Permitted Holders specified in Section 2.11(b). In addition, each purchaser and subsequent transferee of Notes will be required or deemed to agree understand and acknowledge that the Issuer has the right, hereunder, to act withhold on any beneficial owner of an interest in accordance a Note that fails to comply with Sections 2.7 the foregoing requirements. (e) The Issuer shall, if requested by the Collateral Manager, enter into (and 2.8 comply with) an agreement with the IRS (or other appropriate governmental agency) in connection with FATCA. To the extent required under such agreement, the Issuer shall (i) compel any beneficial owner of an interest in a Note that fails to comply with the Fiscal Agency Agreementforegoing requirements to sell its interest in such Note, as or to sell such interest on behalf of such owner following the procedures and timeframe relating to Non-Permitted Holders specified in effect Section 2.11(b) and (ii) withhold on the Closing Datepayments to holders that fail to comply with its request for identifying information in connection with FATCA.

Appears in 1 contract

Samples: Indenture (Garrison Capital Inc.)

Treatment and Tax Certification. (a) Each The Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt of (i) with respect to any period during which the Issuer is disregarded as an entity separate form its owner, such owner and (ii) with respect to any other period, the Issuer, in each case for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income and franchise tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal, accounting and ratings purposes. (b) The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any the properly completed and signed applicable tax forms or certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, U.S. Person) or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications meet its Noteholder Reporting Obligations may result in the imposition withholding from payments in respect of such Note, including U.S. federal withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will comply with the Holder Reporting Obligations. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail to achieve Tax Account Reporting Rules Compliance, the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancewithholding. (d) Each Holder agrees that no Secured Notes may be transferred purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion acceptance of tax counsel of nationally recognized standing in the United States experienced such Note or an interest in such matters is delivered to the TrusteeNote, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. shall: (e1) Each Holder will be required or deemed to represent that, if it is not a United States Tax Person, it either: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. (f) Each Holder will be required or deemed to agree to provide the Issuer and Trustee with (i) any information as is necessary (in the sole determination of the Issuer or the Trustee, as applicable) for the Issuer and the Trustee to determine whether such purchaser, beneficial owner or transferee is a U.S. Person or a United States owned foreign entity (as defined in Section 1471(d)(3) of the Code) (“United States owned foreign entity”) and (ii) any additional information that the Issuer or its agent requests in connection with certifications necessary to establish that Sections 1471-1474 of the Code and (2) if it is not subject a U.S. Person or a United States owned foreign entity that is a Holder or beneficial owner of Notes or an interest therein, be required to withholding tax under (x) provide the Tax Account Reporting Rules. (g) Each Holder represents thatIssuer and Trustee its name, address, U.S. taxpayer identification number and, if it is not a United States Tax Personowned foreign entity, it is notthe name, address and taxpayer identification number of each of its “substantial United States owners” as defined in Section 1473(2) of the Code, and will not be, a member of an “expanded group” within any other information requested by the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly Issuer or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares its agent upon request and (iiy) update any such information provided in clause (Ax) promptly upon learning that any such information previously provided has become obsolete or incorrect or is otherwise required (such obligation, the Issuer is a controlled partnership” (within the meaning Noteholder Reporting Obligations”). Each purchaser and subsequent transferee of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree acknowledge that the Issuer may provide such information and any other information concerning its investment in the Notes to act the U.S. Internal Revenue Service. Each purchaser and subsequent transferee of Notes will be required or deemed to understand and acknowledge that the Issuer has the right, hereunder, to compel any beneficial owner of an interest in accordance a Note that fails to comply with Sections 2.7 the foregoing requirements to sell its interest in such Note, or may sell such interest on behalf of such owner (e) Each Subordinated Noteholder acknowledges and 2.8 agrees to the provisions set forth in Section 7 of the Fiscal Agency Agreement, as in effect on limited liability company agreement of the Closing DateIssuer and covenants to take no action inconsistent with such provisions.

Appears in 1 contract

Samples: Indenture (Garrison Capital LLC)

Treatment and Tax Certification. (a) Each The Issuer and the Trustee agree, and each Holder (including, for purposes of this Section 2.13, any and each beneficial owner of the Notes)a Secured Note, by acceptance of such Notes Secured Note or an interest in such Notes Secured Note shall be deemed to have agreed agreed, to treat, and shall treat, the NotesSecured Notes as debt of the Issuer for United States federal and, to the extent outstanding for U.S. federal income tax purposes, as debt and the Preferred Shares as equity, in each case, for all U.S. federalpermitted by law, state and local income tax and franchise Tax purposes and will shall take no action inconsistent with such treatment unless required by lawany relevant taxing authority. The Issuer will also treat the Secured Notes as debt for legal and accounting purposes. (b) The Issuer and the Trustee agree, and each Holder and each beneficial owner of a Subordinated Note, by acceptance of such Subordinated Note or an interest in such Subordinated Note shall be deemed to have agreed, to treat, and shall treat, the Subordinated Notes as equity in the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise Tax purposes and shall take no action inconsistent with such treatment unless required by any relevant taxing authority. (c) Each Holder will timely furnish and beneficial owner of a Note, by acceptance of such Note or an interest in such Note, shall be deemed to understand and acknowledge that failure to provide the Issuer, the Trustee or their respective agents any Paying Agent with any tax forms or the properly completed and signed applicable Tax certifications (includinggenerally, without limitationin the case of U.S. federal income tax, IRS an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a U.S. Person that is a United States Tax person or an the applicable IRS Internal Revenue Service Form W-8 (together with all or applicable attachmentssuccessor form) in the case of a Person that is not a United States Tax person, or any successors to such IRS formsU.S. Person) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting Rules), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition withholding from payments in respect of such Note, including U.S. federal tax withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuerwithholding. (cd) Each Holder will comply with the Holder Reporting Obligations. In the event purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Holder fails for any reason Note or an interest in such Note, shall be deemed to comply with the Holder Reporting Obligations or otherwise becomes an Ineligible Tax Holder, or have agreed to the extent that its ownership of Notes would otherwise cause provide the Issuer to fail to achieve Tax Account Reporting Rules Compliance, and Trustee any information or documentation that is required under FATCA or is otherwise necessary (in the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, any amounts withheld from payments to or for the benefit sole determination of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) assign to such Notes a separate CUSIP or CUSIPs. Each Holder agrees that the Issuer, the Trustee and/or Trustee, or other agent of the Issuer, as applicable) to enable the Issuer, the Trustee, or other agent of the Issuer to (i) determine their agents duties and liabilities with respect to any Taxes they may be required to withhold pursuant to FATCA in respect of such Note or representatives the Noteholder of such Note or beneficial interest therein or (ii) otherwise comply with the requirements of FATCA. Each purchaser and subsequent transferee of the Notes will be deemed to acknowledge and agree that the Issuer may (1) provide any such information and documentation any other information concerning its investment in its the Notes to the U.S. Internal Revenue Service Service. In addition, each purchaser, beneficial owner and any other relevant tax authority subsequent transferee of the Notes will be deemed to acknowledge and (2) take such other steps as they deem necessary or helpful to ensure agree that the Issuer achieves Tax Account Reporting Rules Compliance. (d) Each Holder agrees that no Secured Notes may be transferred by has the right under the Indenture to withhold on a Person from which payment on a Note if the Issuer is disregarded as separate for U.S. federal income tax purposespurchaser, unless beneficial owner or subsequent transferee of an interest in a written opinion Note fails to comply with FATCA or provide evidence of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transferits compliance with FATCA. (e) Each Holder will purchaser, beneficial owner and subsequent transferee of a Note or interest therein, by acceptance of such Note or an interest in such Note, shall be required or deemed to represent have represented that, if it is not a United States Tax Personperson” as defined in Section 7701(a)(30) of the Code, it either: (i) is: either (A) it is not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); , (B) not it is a “10 percent shareholder” of the Issuer (or its sole owner, as applicable) within the meaning of section 871(h)(3) of the Code; and (C) not a “controlled foreign corporation” within the meaning of Section 957(a) of the Code person that is related to the Issuer (or its sole owner, as applicable) within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States. States or (fC) Each Holder will all payments received or to be required or deemed to agree to provide received by it from the Issuer are effectively connected with the conduct of trade or business in the United States by the beneficial owner, and the Trustee with certifications necessary to establish that (ii) it is not subject purchasing the Notes in order to withholding tax under the Tax Account Reporting Rules. (g) Each Holder represents that, if it is not a United States Tax Person, it is not, and will not be, a member of an “expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation (as determined for reduce its U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income liability pursuant to a tax purposes as partnerships, disregarded entities, or grantor trusts), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or (B) the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; provided that such beneficial owner may acquire Secured Notes in violation of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rulesavoidance plan. (h) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

Appears in 1 contract

Samples: Indenture (KCAP Financial, Inc.)

Treatment and Tax Certification. (a) Each Holder (including, for purposes of this Section 2.13, any beneficial owner of the Secured Notes), by acceptance of such Notes or an interest in such Notes shall be deemed to have agreed agreed, to treat, and shall treat, the NotesIssuer, to the extent outstanding for U.S. federal income tax purposes, as debt Co-Issuer and the Preferred Shares Notes as equity, described in each case, the "Certain U.S. Federal Income Tax Considerations" section of the Offering Circular for all U.S. federal, state and local income tax purposes and will take no action inconsistent with such treatment unless required by law. (b) Each Holder will timely furnish the Issuer, the Trustee or their respective agents with any tax forms or certifications (including, without limitation, IRS Form W-9 in the case of a Person that is a United States Tax person or W-9, an applicable IRS Form W-8 (together with all applicable attachments) in the case of a Person that is not a United States Tax person), or any successors to such IRS forms) that the Issuer, the Trustee or their respective agents reasonably request in order to (A) make payments to the Holder without, or at a reduced rate of, withholding, (B) qualify for a reduced rate of withholding in any jurisdiction from or through which they receive payments, and (C) satisfy reporting and other obligations under the Code, Treasury regulations, or any other applicable law or regulation (including the Tax Account Reporting RulesCayman FATCA Legislation), and will update or replace such tax forms or certifications in accordance with their terms or subsequent amendments. Such Holder acknowledges that the failure to provide, update or replace any such tax forms or certifications may result in the imposition of withholding or back-up withholding on payments to the beneficial owner, or to the Issuer. Amounts withheld by the Issuer or its their agents that are, in their sole judgment, required to be withheld pursuant to applicable tax laws will be treated as having been paid to such Holder by the Issuer. (c) Each Holder will provide the Issuer or its agents with any correct, complete and accurate information or documentation that may be required for the Issuer to comply with FATCA, the Holder Reporting ObligationsCayman FATCA Legislation and the CRS and to prevent the imposition of U.S. federal withholding tax under FATCA on payments to or for the benefit of the Issuer. In the event such Holder fails for any reason to comply with the Holder Reporting Obligations provide such information or otherwise becomes an Ineligible Tax Holderdocumentation, or to the extent that its ownership of Notes would otherwise cause the Issuer to fail be subject to achieve Tax Account Reporting Rules Complianceany tax under FATCA, (A) the Issuer (and any agent acting on its behalf) is authorized to (A) withhold amounts otherwise distributable to the investor as compensation for, and to the extent of, for any amounts withheld from payments to or for the benefit of the Issuer as a result of such failure or such ownership, and (B) to the extent necessary to avoid an adverse effect on the Issuer as a result of such failure or such ownership, the Issuer will have the right to compel the investor to sell its Notes and, if such person does not sell its Notes within 10 Business Days after notice from the Issuer or its agents, the Issuer will have the right to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account, in addition to other related costs and charges, any taxes incurred by the Issuer in connection with such sale) to such person as payment in full for such Notes and/or (C) Notes. The Issuer may also assign to each such Notes Note a separate CUSIP or CUSIPssecurities identifier in the Issuer’s sole discretion. Each Holder agrees that the Issuer, the Trustee and/or their agents or representatives may (1) provide any information and documentation concerning its investment in its Notes to the Cayman Islands Tax Information Authority, the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as they deem necessary or helpful to ensure that the Issuer achieves Tax Account Reporting Rules Compliancecomplies with FATCA, the Cayman FATCA Legislation and the CRS. (d) Each Holder agrees that no Secured Notes may be transferred by a Person from which the Issuer is disregarded as separate for U.S. federal income tax purposes, unless a written opinion of tax counsel of nationally recognized standing in the United States experienced in such matters is delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that any Secured Notes so transferred will be characterized as debt for U.S. federal income tax purposes immediately following such transfer. (e) Each Holder will be required or deemed to represent that, if it is not a United States Tax Personperson for U.S. federal income tax purposes, it eitherit: (i) is: (A) not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of Section 881(c)(3)(A) of the Code); (B) not a "10 percent shareholder" with respect to the holder or any beneficial owners of the Issuer (or its sole owner, as applicable) Preferred Shares within the meaning of section 871(h)(3) or section 881(c)(3)(B) of the Code; and (C) not a "controlled foreign corporation” within the meaning of Section 957(a) of the Code " that is related to the Issuer (holder or its sole owner, as applicable) any beneficial owners of the Preferred Shares within the meaning of section 881(c)(3)(C) of the Code; (ii) has provided an IRS Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with its conduct of a trade or business within in the United States and includible in its gross income; or (iii) has provided an IRS Form W-8BEN-E representing that it is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in payments on the United StatesNotes. (fe) Each Holder will be required or deemed to agree to provide the Issuer and the Trustee with certifications necessary to establish that it is not subject to withholding tax under the Tax Account Reporting RulesFATCA. (gf) Each Holder represents that, if that it is not a United States Tax Person, it is not, and will not be, a member of an "expanded group” within the meaning of the Section 385 Rules) that includes a domestic corporation " (as determined for U.S. federal income tax purposes) if (i) such domestic corporation, directly or indirectly (through one or more entities that are treated for U.S. federal income tax purposes as partnerships, disregarded entities, or grantor trustsdefined in Treasury regulations section 1.385-1(c)(4), owns Preferred Shares and (ii) (A) the Issuer is a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group or which a beneficial owner of Preferred Shares is a "covered member" (B) as defined in Treasury regulations section 1.385-1(c)(2)), except to the extent that the Issuer is an entity disregarded as separate from either such domestic corporation or an entity that is treated as a “controlled partnership” (within the meaning of the Section 385 Rules) with respect to such expanded group; its agents have provided that such beneficial owner may acquire Secured Notes in violation with an express waiver of this restriction if it provides the Issuer with an opinion of nationally recognized U.S. tax counsel experienced in such matters, in form and substance satisfactory to the Collateral Manager, to the effect that the acquisition or transfer of Secured Notes will not cause such Secured Notes to be recharacterized as equity under the Section 385 Rules.representation. -95- (hg) Each Holder and beneficial owner of Preferred Shares will be required or deemed to agree to act in accordance with Sections 2.7 and 2.8 of the Fiscal Agency Agreement, as in effect on the Closing Date.

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Samples: Indenture and Security Agreement (Owl Rock Capital Corp)