Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of . This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms; (ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the Company, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement; (iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational Documents, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument; (iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder; (v) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ; (A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation); (vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws; (viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company; (ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction; (A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material; (xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date; (xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code; (xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code); (xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4; (xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company; (xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company; (xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and (xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 3 contracts
Samples: Purchase Option Agreement (STAG Industrial, Inc.), Purchase Option Agreement (STAG Industrial, Inc.), Purchase Option Agreement (STAG Industrial, Inc.)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], partnership duly formed, validly existing and in good standing under the laws of the State of Delaware. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation)Code;
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paidnot, and there are no other audits or investigations by any taxing authority in progresswill not be, nor has a Person with whom Purchaser is restricted from doing business with under the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority byAnti-Terrorism Laws, or with respect to, the Company; including persons and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported entities named on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect Office of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing DateForeign Asset Control Specially Designated Nationals and Blocked Persons List;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 3 contracts
Samples: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.), Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.), Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)
Representations Concerning Seller. (i) Each Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of Delaware. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller’s creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller’s assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller’s assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement. Notwithstanding anything herein to the contrary, Purchaser acknowledges that Seller has disclosed to Purchaser the existence of the pending proceeding styled and numbered Petition of AT&T for Relief from Carrier-of-Last Resort Obligations, , 07-0357-TL, Public Service Commission and Seller represents and warrants to Purchaser that such pending proceeding will not adversely affect Purchaser, the Property, the consummation of the transactions contemplated by this Agreement or Seller’s ability to perform its obligations hereunder. Fort Development Group, Inc. hereby agrees to indemnify, defend (with counsel reasonably acceptable to Purchaser) and hold harmless Purchaser and its members, managers, officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all claims, liens, actions, liabilities, suits, losses, damages, costs, and/or expenses (including reasonable attorneys’ fees and court costs) asserted against or sustained and/or incurred by an Indemnified Party and arising out of or in any way relating to such proceeding, which indemnity shall be memorialized in a written agreement to be delivered by Seller to Purchaser at Closing in form and substance reasonably satisfactory to Seller and Purchaser (the “Seller Indemnity”);
(iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or bound, (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(iv) No authorization, consent, or approval of any governmental authority (including courts) or any other Person is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(v) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii)Code; Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly00-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property0000000; and
(xviiivi) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefitsis not, and (ii) will not be, a Person with respect to severance payments or other termination payments owing by Seller or whom Purchaser is restricted from doing business with under the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the ClosingAnti-Terrorism Laws.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
Representations Concerning Seller. (i) Seller The Town of Fairhaven is a [corporation] [limited partnership] [limited liability company], political subdivision of the Commonwealth of Massachusetts duly formedorganized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts. This Subject to the approval by the Town Meeting for the Town of Fairhaven authorizing the Board of Selectmen to enter into this sale of the Property, if not previously obtained, this Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, claims, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder, actions or claims relating thereto or specified therein. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller's creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller's assets, (e) admitted in writing it its inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Subject to the approval by the Town Meeting for the Town of Fairhaven authorizing the Board of Selectmen to enter into this sale of the Property, if not previously obtained, Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s 's knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(v) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.or
Appears in 1 contract
Samples: Option to Purchase Agreement
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of . the State of Delaware This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s 's knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “"foreign person” " as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation)Code;
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paidnot, and there are no other audits or investigations by any taxing authority in progresswill not be, nor has a Person with whom Purchaser is restricted from doing business with under the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority byAnti-Terrorism Laws, or with respect to, the Company; including persons and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported entities named on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect Office of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing DateForeign Asset Control Specially Designated Nationals and Blocked Persons List;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Representations Concerning Seller. (i) Each Seller (other than Assignor 2) is a [corporation] [limited partnership] [limited liability company], company duly formed, validly existing and in good standing under the laws of the State of Delaware and is duly registered as a foreign limited liability company in the State of Connecticut. This Assignor 2 is a limited liability company duly formed, validly existing and in good standing under the laws of the State of New Hampshire and is duly registered as a foreign limited liability company in the State of Connecticut. The Person(s) executing this Agreement on behalf of each Seller has been duly authorized to do so and this Agreement constitutes the valid and legally binding obligation of Sellersuch entity, enforceable against Seller such entity in accordance with its terms;
(ii) There Except as set forth in the attached Schedule 7.2(b), there are no actions, suits or proceedings pending or, to the knowledge of each Seller, threatenedthreatened in writing, against or affecting each Seller or the Company which, if determined adversely to Seller or the Companysuch entity, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Each Seller has full limited liability company right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither Except as set forth in attached Schedule 7.2(a), neither the execution, delivery or performance of this Agreement nor compliance herewith nor the conveyance of the Property to Purchaser (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational Documentsany Seller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) subject to any matters set forth in Schedule 6.1(n) and obtaining applicable Certificates, any agreement or instrument to which any Seller or the Company is a party or by which it any Seller is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (BioMed Realty Trust Inc)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], company duly formed, validly existing and in good standing under the laws of Delaware. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation)Code;
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paidnot, and there are no other audits or investigations by any taxing authority in progresswill not be, nor has a Person with whom Purchaser is restricted from doing business with under the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority byAnti-Terrorism Laws, or with respect to, the Company; including persons and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported entities named on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect Office of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing DateForeign Asset Control Specially Designated Nationals and Blocked Persons List;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], corporation duly formed, validly existing and in good standing under the laws of Florida. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller’s creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller’s assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller’s assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(v) Seller is not a “foreign person” or “disregarded” entity” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii)Code; Seller’s taxpayer identification number is 50-000-00-00;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Sykes Enterprises Inc)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], corporation duly formed, validly existing and in good standing under the laws of Florida. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
; (ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller’s creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller’s assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller’s assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
; (iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
; (iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
; (v) Seller is not a “foreign person” or “disregarded” entity” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii)Code; Seller’s taxpayer identification number is 00-000-00-00;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of California. This Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement constitutes including, without limitation, the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;Deliveries.
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller’s creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller’s assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller’s assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;.
(iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;.
(iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;.
(v) Seller is not a “foreign person” or “disregarded entity” as defined in Section 1445 of the Code or Code; Seller has a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s federal taxpayer identification number which will be provided to the Title Company for Closing.
(vi) Neither Seller nor, to Seller’s actual knowledge, any of its respective affiliates, is ;
in violation of the Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller nor, to Seller’s actual knowledge, any of its affiliates, is acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time. Neither Seller nor, to Seller’s actual knowledge, any of its affiliates, or, without inquiry, any of its brokers or other agents, in any capacity in connection with the sale of the Property (A) All Tax Returns required conducts any business or engages in making or receiving any contribution of funds, goods or services to be filed byor for the benefit of any person included in the lists referenced above, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (C) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Money Laundering and payable byAnti-Terrorism Laws. Neither Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List, and the monies used by Seller in connection with this Agreement and amounts committed with respect hereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)).
(vii) Seller (a) has not offered, promised, given or agreed to give to any person or entity any bribe on behalf ofof Purchaser or its affiliates or otherwise with the object of obtaining a business advantage for Purchaser or its affiliates or otherwise; (b) has not engaged in any activity or practice which would constitute an offense under any applicable anti-bribery and/or anti-corruption laws, or including but not limited to the United States Foreign Corrupt Practices Act of 1977 with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly transactions contemplated by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxesthis Agreement; (Cc) no agreementhas in place, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, its own policies and procedures to ensure compliance with any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publiclyanti-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable corruption laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (Cd) no issue has been raised in writing by any taxing authority in any current or prior examination whichplace, by application of the same or similar principles, could reasonably be expected effective accounting procedures and internal controls necessary to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company record all expenditures in connection with any employee benefit plans or collective bargaining agreementsthis Agreement, employment agreements or other similar arrangementwhich enable Seller, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend Purchaser’s affiliates to readily identify Seller’s financial and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of related records in connection with this paragraph shall survive the ClosingAgreement.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (BLACK CREEK INDUSTRIAL REIT IV Inc.)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of the State of Michigan. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has not (a) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its Seller's creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its Seller's assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its Seller's assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iii) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s 's knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property Property pursuant to any such agreement or instrument;
(iv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(v) Seller is not a “"foreign person” " or "disregarded" entity" as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii)Code; Seller’s 's taxpayer identification number is 00-0000000;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Gsi Group Inc)
Representations Concerning Seller. (iA) Each Seller (other than Lyme/Houston Development I, LP) is a [corporation] [limited partnership] [limited liability company], company duly formed, validly existing and in good standing under the laws of . This the State of Delaware and is duly registered as a foreign limited liability company in the Commonwealth of Massachusetts;
(B) Lyme/Houston Development I, LP is a Delaware limited partnership duly formed, validly existing and in good standing under the laws of the State of Delaware and is duly registered as a foreign limited partnership in the State of Texas;
(C) The Person(s) executing this Agreement on behalf of each Seller has been duly authorized to do so and this Agreement constitutes the valid and legally binding obligation of Sellersuch entity, enforceable against Seller such entity in accordance with its terms;
(ii) There Except as set forth in the attached Schedule 7.2(b), there are no actions, suits or proceedings pending or, to the knowledge of each Seller, threatenedthreatened in writing, against or affecting each Seller or the Company which, if determined adversely to Seller or the Companysuch entity, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Each Seller has full limited liability company right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither Except as set forth in attached Schedule 7.2(a), neither the execution, delivery or performance of this Agreement nor compliance herewith nor the conveyance of the Property to Purchaser (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational Documentsany Seller, (2) to the best of each Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) subject to the Txxxxxx Notice, any matters set forth in Schedule 6.1(r) and obtaining applicable Certificates, any agreement or instrument to which any Seller or the Company is a party or by which it any Seller is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (BioMed Realty Trust Inc)
Representations Concerning Seller. (i) Each Seller is a [corporation] [limited partnership] [limited liability company], company duly formed, validly existing and in good standing under the laws of . This Agreement constitutes the valid and legally binding obligation State of Seller, enforceable against Seller in accordance with its termsDelaware;
(ii) There This Agreement is, and all the documents executed by Seller which are no actionsto be delivered to Purchaser at the Closing will be, suits or proceedings pending orduly authorized, executed and delivered by Seller. The obligations of Seller contained in this Agreement are legal, valid and binding obligations of Seller enforceable against it in accordance with its terms (except to the knowledge extent such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the Company, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has contracting parties generally and principles of equity);
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller which, if determined adversely to Seller, would materially and adversely affect its ability to perform its obligations hereunder;
(v) Neither the execution, delivery or performance of this Agreement nor compliance herewith (ai) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authorityauthority binding upon Seller, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (bii) results in the creation or imposition of any lien, charge or encumbrance upon its or the CompanySeller’s property pursuant to any such agreement or instrument;
(ivvi) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvii) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable lawsCode;
(viii) The Company (Neither Seller nor, to Seller’s actual knowledge, its affiliates, is in violation of the Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller nor, to Seller’s actual knowledge, its affiliates, is acting, directly or Seller indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Company) has made available Annex to Purchaserthe Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time. Neither Seller nor, to Seller’s actual knowledge, its agents and underwriters complete copies affiliates or, without inquiry, any of its brokers or other agents, in any capacity in connection with the sale of the Property (A) conducts any audit reportbusiness or engages in making or receiving any contribution of funds, revenue agent report goods or other written assertions issued within services to or for the last three (3) years relating to benefit of any material Taxes due from or with respect to person included in the Company with respect to its income, assets or operationslists referenced above, (B) all Tax Returns filed by deals in, or on behalf of otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Company for all periods for which the applicable statute of limitations has yet to lapse and Executive Order, or (C) all Tax rulings, requests for rulingsengages in or conspires to engage in any transaction that evades or avoids, or closing agreements specifically relating has the purpose of evading or avoiding, or attempts to violate, any of the Companyprohibitions set forth in any Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List, and the monies used by Seller in connection with this Agreement and amounts committed with respect hereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7));
(ix) No claim bankruptcy, insolvency, reorganization or similar action or proceeding, whether voluntary or involuntary, is pending, or, to the best of Seller’s knowledge, has been made by a taxing authority threatened in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation bywriting, or required to file an income or franchise Tax Return in, that jurisdictionagainst Seller;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], corporation duly formed, validly existing and in good standing under the laws of . This Agreement constitutes the valid and legally binding obligation state of Seller, enforceable against Seller in accordance with its termsDelaware;
(ii) There This Agreement is, and all the documents executed by Seller which are no actionsto be delivered to Purchaser at the Closing will be, suits or proceedings pending orduly authorized, executed and delivered by Seller. The obligations of Seller contained in this Agreement are legal, valid and binding obligations of Seller enforceable against it in accordance with its terms (except to the knowledge extent such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the Company, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has contracting parties generally and principles of equity);
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller which, if determined adversely to Seller, would adversely affect its ability to perform its obligations hereunder;
(v) Neither the execution, delivery or performance of this Agreement nor compliance herewith (ai) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational documents of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authorityauthority binding upon Seller, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (bii) results in the creation or imposition of any lien, charge or encumbrance upon its or the CompanySeller’s property pursuant to any such agreement or instrument;
(ivvi) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvii) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable lawsCode;
(viii) The Company (Neither Seller nor any Person controlled by Seller, nor to Seller’s actual knowledge any Person controlling Seller, is in violation of the Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller nor, to Seller’s actual knowledge, its affiliates, is acting, directly or Seller indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Company) has made available Annex to Purchaserthe Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time. Neither Seller nor, to Seller’s actual knowledge, its agents and underwriters complete copies affiliates or, without inquiry, any of its brokers or other agents, in any capacity in connection with the sale of the Property (A) conducts any audit reportbusiness or engages in making or receiving any contribution of funds, revenue agent report goods or other written assertions issued within services to or for the last three (3) years relating to benefit of any material Taxes due from or with respect to person included in the Company with respect to its income, assets or operationslists referenced above, (B) all Tax Returns filed by deals in, or on behalf of otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Company for all periods for which the applicable statute of limitations has yet to lapse and Executive Order, or (C) all Tax rulings, requests for rulingsengages in or conspires to engage in any transaction that evades or avoids, or closing agreements specifically relating has the purpose of evading or avoiding, or attempts to violate, any of the Company;prohibitions set forth in any Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List, and the monies used by Seller in connection with this Agreement and amounts committed with respect hereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)); and
(ix) No claim bankruptcy, insolvency, reorganization or similar action or proceeding, whether voluntary or involuntary, is pending, or, to the best of Seller’s knowledge, has been made by a taxing authority threatened in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation bywriting, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the ClosingSeller.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (GCP Applied Technologies Inc.)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], partnership duly formed, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business and is in good standing under the laws of the State of Texas. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation)Code;
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paidnot, and there are no other audits or investigations by any taxing authority in progresswill not be, nor has a Person with whom Purchaser is restricted from doing business with under the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority byAnti-Terrorism Laws, or with respect to, the Company; including persons and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported entities named on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect Office of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing DateForeign Asset Control Specially Designated Nationals and Blocked Persons List;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc./De)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], company duly formed, validly existing and in good standing under the laws of the State of Delaware and is duly registered as a foreign limited liability company in the Commonwealth of Massachusetts. This The Person(s) executing this Agreement on behalf of Seller has been duly authorized to do so and this Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatenedthreatened in writing, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full limited liability company right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither Except as set forth in attached Schedule 7.2(a), neither the execution, delivery or performance of this Agreement nor compliance herewith nor the conveyance of the Property to Purchaser (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) subject to Section 7.2(b)(v) and obtaining applicable Certificates, any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (BioMed Realty Trust Inc)
Representations Concerning Seller. Each of the Sellers represents and warrants with respect to itself as follows:
(i) Seller is a [corporation] [limited partnership] [limited liability company], duly formed, validly existing and in good standing under the laws of . This Agreement constitutes the valid and legally binding obligation of each Seller, enforceable against each Seller in accordance with its terms;
(ii) There are no actions, suits or proceedings pending or, to the knowledge of any Seller, threatened, against or affecting any Seller or the Company which, if determined adversely to Seller or the Companyapplicable Seller, would adversely affect its their ability to perform its obligations hereunder. Neither Seller nor the Company has ;
(aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Each Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
(iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational Documentsapplicable Seller, (2) to the best of the applicable Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) subject to Section 6.2(c), to the best of the applicable Seller’s knowledge, any agreement or instrument to which the applicable Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
(ivv) No Except for the Consents, no authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by the applicable Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
(vvi) No Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii); Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation)Code;
(vii) The Company has complied Each Seller is a duly formed and validly existing legal entity and is in all material respects with all applicable laws, rules and regulations relating to good standing in any jurisdiction where the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required failure to be so withheld and paid over for all periods in good standing will have a material adverse impact on its ability to perform its obligations under all applicable lawsthis Agreement;
(viii) The Company (Neither any Seller nor, to Sellers’ actual knowledge, any of their respective affiliates, is in violation of the Anti-Money Laundering and Anti-Terrorism Laws. Neither any Seller nor, to Sellers’ actual knowledge, any of their respective affiliates, is acting, directly or Seller indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Company) has made available Annex to Purchaserthe Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time. Neither any Seller nor, to Sellers’ actual knowledge, any of their respective affiliates, or, without inquiry, any of its agents and underwriters complete copies brokers or other agents, in any capacity in connection with the sale of the Property (A) conducts any audit reportbusiness or engages in making or receiving any contribution of funds, revenue agent report goods or other written assertions issued within services to or for the last three (3) years relating to benefit of any material Taxes due from or with respect to person included in the Company with respect to its income, assets or operationslists referenced above, (B) all Tax Returns filed by deals in, or on behalf of otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Company for all periods for which the applicable statute of limitations has yet to lapse and Executive Order, or (C) all Tax rulings, requests for rulingsengages in or conspires to engage in any transaction that evades or avoids, or closing agreements specifically relating to has the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income purpose of evading or franchise Tax Return that the Company is or may be subject to taxation byavoiding, or required attempts to file an income violate, any of the prohibitions set forth in any Anti-Money Laundering and Anti-Terrorism Laws. Neither any Seller, nor any person controlling or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations controlled by any taxing authority of the Tax Returns of or covering or including the CompanySeller, or such deficiencies or assessments have been fully paid, and there are no other audits or investigations by any taxing authority in progress, nor has the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority by, or with respect to, the Company; and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted country, territory, individual or been taxable as entity named on a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiariesGovernment List, and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the Property; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company monies used by Sellers in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations this Agreement and amounts committed with respect to employment arising hereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any Title 18 of the Company’s former or current employees (collectivelyUnited States Code, “Employee Claims”Section 1956(c)(7). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.);
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (STAG Industrial, Inc.)
Representations Concerning Seller. (i) Seller is a [corporation] [limited partnership] [limited liability company], partnership duly formed, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business and is in good standing under the laws of the State of Texas. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms;
; (ii) There are no actions, suits or proceedings pending or, to the knowledge of Seller, threatened, against or affecting Seller or the Company which, if determined adversely to Seller or the CompanySeller, would adversely affect its ability to perform its obligations hereunder. Neither Seller nor the Company has ; (aiii) made a general assignment for the benefit of creditors, (b) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition of its creditors, (c) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (d) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (e) admitted in writing it inability to pay its debts as they come due or (f) made an offer of settlement, extension or composition to its creditors generally. Seller has full right, power and authority and is duly authorized to enter into this Agreement, to perform each of the covenants on its part to be performed hereunder to cause the Company to take the actions required to be taken by the Company hereunder and to execute and deliver, and to perform its obligations under all documents required to be executed and delivered by it pursuant to this Agreement;
; (iiiiv) Neither the execution, delivery or performance of this Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under (1) the organizational charter documents or by-laws of Seller or the Company’s Organizational DocumentsSeller, (2) to the best of Seller’s knowledge, any law or any order, writ, injunction or decree of any court or governmental authority, or (3) any agreement or instrument to which Seller or the Company is a party or by which it is bound or (b) results in the creation or imposition of any lien, charge or encumbrance upon its or the Company’s property pursuant to any such agreement or instrument;
; (ivv) No authorization, consent, or approval of any governmental authority (including courts) is required for the execution and delivery by Seller of this Agreement or the performance of its or the Company’s obligations hereunder;
; (vvi) Seller is not a “foreign person” as defined in Section 1445 of the Code or a “disregarded entity” as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii)Code; Seller’s taxpayer identification number is ;
(A) All Tax Returns required to be filed by, on behalf of, or with respect to, the Company have been duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns were true, complete and correct in all material respects; (B) all Taxes due and payable by, on behalf of, or with respect to the Company, either directly or otherwise, have been fully and timely paid, except (1) to the extent adequately reserved for in accordance with generally accepted accounting principles consistently applied on the balance sheet of the Company, and adequate reserves or accruals for Taxes have been provided in the balance sheet of the Company with respect to any period through the date hereof for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing and (2) with respect to real estate taxes and assessments for the Property that are paid directly by the Tenant under the Lease and pursuant to such Lease, as to which Seller has no knowledge of Tenant’s material failure to pay such Taxes and Seller covenants to use commercially reasonable efforts to enforce the provisions of such Lease with respect to the payment of such Taxes; (C) no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitations) has been executed or filed with any taxing authority by or on behalf of the Company, and (D) the Company is, and at all times during its existence has been, a limited liability company that is taxable as a “disregarded entity” (rather than being taxable as an association or a publicly-traded partnership taxable as a corporation);
(vii) The Company has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld from employees’ salaries, wages and other compensation and has paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods under all applicable laws;
(viii) The Company (or Seller on behalf of the Company) has made available to Purchaser, its agents and underwriters complete copies of (A) any audit report, revenue agent report or other written assertions issued within the last three (3) years relating to any material Taxes due from or with respect to the Company with respect to its income, assets or operations, (B) all Tax Returns filed by or on behalf of the Company for all periods for which the applicable statute of limitations has yet to lapse and (C) all Tax rulings, requests for rulings, or closing agreements specifically relating to the Company;
(ix) No claim has been made by a taxing authority in a jurisdiction where the Company does not file an income or franchise Tax Return that the Company is or may be subject to taxation by, or required to file an income or franchise Tax Return in, that jurisdiction;
(A) There are no deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Tax Returns of or covering or including the Company, or such deficiencies or assessments have been fully paidnot, and there are no other audits or investigations by any taxing authority in progresswill not be, nor has a Person with whom Purchaser is restricted from doing business with under the Company received any notice from any taxing authority that it intends to conduct such an audit or investigation; (B) no requests for a ruling or a determination letter are pending with any taxing authority byAnti-Terrorism Laws, or with respect to, the Company; including persons and (C) no issue has been raised in writing by any taxing authority in any current or prior examination which, by application of the same or similar principles, could reasonably be expected to result in a proposed deficiency against or with respect to the Company for any subsequent taxable period that could be material;
(xi) Neither the Company nor any other Person on behalf of the Company has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of state, local or foreign law with respect to the Company. No amount will be required to be included as an item of income in, or excluded as an item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date with respect to the Company as a result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (B) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of applicable state, local or foreign Law) executed on or prior to the Closing Date; (C) election with respect to income from the discharge of indebtedness under Code Section 108(i); (D) prepaid amount received on or prior to the Closing Date; (E) sale reported entities named on the installment method that occurred prior to the Closing Date, or (F) any similar election, action or agreement that would have the effect Office of deferring any liability for Taxes with respect to the Company from any period ending on or before the Closing Date to any period ending after the Closing Date;
(xii) Seller is a United States person within the meaning of Section 7701(a)(30) of the Code;
(xiii) The Company has never constituted or been taxable as a “corporation” or an “association” (within the meaning of the Code);
(xiv) The Company has never engaged in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4;
(xv) The transactions contemplated hereby will not result in any income Tax liability to Purchaser or the Company;
(xvi) The Company has no subsidiaries, Foreign Asset Control Specially Designated Nationals and the Company has no investments or other interests in any other firm, person or venture other than the Property. The Company has no assets other than cash (if any) and the Property. Owner is not subject to any obligation or requirement to provide funds to or to make any investment (in the form of a loan, capital contribution or otherwise) in or to any person or venture. Seller has not pledged or otherwise encumbered its Membership Interests in the Company;
(xvii) The Company is a single member, single purpose entity disregarded for federal income tax purposes and established for the sole purpose of owning and operating the Property and the Company does not own or operate any property other than the PropertyBlocked Persons List; and
(xviii) The Company does not have any employees employed in the management, ownership or operation of the Property. Purchaser and Seller agree that Purchaser shall not assume, shall not take subject to and shall not be liable for, any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, to former or current employees of the Company, (i) which arise or accrue prior to the Closing including, without limitation, any liabilities or obligations of the Company in connection with any employee benefit plans or collective bargaining agreements, employment agreements or other similar arrangement, any liabilities or obligations with respect to employment arising under any federal, state or municipal statute or common law, or any liabilities or obligations in respect of retiree health benefits, and (ii) with respect to severance payments or other termination payments owing by Seller or the Company to any of the Company’s former or current employees (collectively, “Employee Claims”). No portion of any liability respecting the Employee Claims listed in clause (ii) immediately above shall be passed through or charged to the Tenant by the Company. Seller shall indemnify Purchaser and defend and hold Purchaser harmless from and against all claims arising under any Employee Claims. The provisions of this paragraph shall survive the Closing.15
Appears in 1 contract
