Spinco. Spinco hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made by Spinco in the Spinco Tax Representation Letters and the Private Letter Ruling, to the extent that such facts and representations (A) are descriptive of the Spinco Group (including the business purposes for the Spinco Distribution) to the extent they relate to the Spinco Group and the plans, proposals, intentions and policies of the Spinco Group after the Effective Time, or (B) relate to the actions or non-actions of the Spinco Group to be taken (or not taken, as the case may be) after the Effective Time, are, or will be from the time presented or made through and including the Effective Time (and thereafter as relevant) true, correct and complete in all material respects; provided that, notwithstanding anything to the contrary in this Agreement, neither RMT Partner nor Spinco (after the Effective Time) shall be responsible for (i) the accuracy of any such representation, warranty or covenant with respect to periods prior to the Effective Time and (ii) the accuracy of any such representation, warranty or covenant in the Spinco Tax Representation Letters or the Private Letter Ruling that has not been consented to by RMT Partner (such consent not to be unreasonably withheld, conditioned or delayed).
Spinco. SpinCo hereby represents and warrants, or covenants and agrees, as appropriate, that the statements and representations made in the Tax Representation Letter, to the extent they relate to SpinCo or the SpinCo Group are, or, as applicable, will be, from the time presented or made (and, if applicable, through and including the Distribution Time (and thereafter as relevant)) true, correct and complete in all respects.
Spinco. Spinco was formed solely for the purpose of engaging in the Contemplated Transactions and it has not engaged in any business activities or conducted any operations other than in connection with the Contemplated Transactions. As of the date hereof, Spinco does not have any assets or liabilities other than those incident to its formation or related to the evaluation, negotiation and execution of the Transaction Documents.
Spinco. (a) As of the Effective Time, SpinCo shall adopt a new nonqualified deferred compensation plan (the “SpinCo Director Plan”). All Transferred Directors who participated in the KAR Director Plan immediately prior to the Effective Time shall be eligible to participate in the SpinCo Director Plan to the same extent that such Transferred Director participated in the KAR Director Plan prior to the Effective Time (the “Covered Participants”). The SpinCo Director Plan shall assume the obligations of the KAR Director Plan with respect to the Covered Participants whether such benefits accrued before, on or after the Effective Time.
Spinco. Spinco hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made in (i) the IRS Ruling, (ii) the Opinion, (iii) each submission to the IRS in connection with the IRS Ruling, (iv) the representation letter from SEACOR addressed to Counsel supporting the Opinion, (v) the representation letter from Spinco addressed to Counsel supporting the Opinion and (vi) any other materials delivered or deliverable by SEACOR or Spinco in connection with the rendering by Counsel of the Opinion and the issuance by the IRS of the IRS Ruling (all of the foregoing, collectively, the “Tax Materials”), to the extent descriptive of the Spinco Group (including the plans, proposals, intentions and policies of the Spinco Group), are, or will be from the time presented or made through and including the Effective Time and thereafter as relevant, true, correct and complete in all respects.
Spinco. SpinCo hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made in the Representation Letters from SpinCo addressed to the Tax Advisors supporting the Tax Opinions (collectively, the “SpinCo Representation Letters”), to the extent that such facts and representations (A) are descriptive of the SpinCo Group (including the business purposes for the Distribution) to the extent they relate to the SpinCo Group and the plans, proposals, intentions and policies of the SpinCo Group after the Distribution Effective Time, and (B) relate to the actions or non-actions of the SpinCo Group to be taken (or not taken, as the case may be) after the Distribution Effective Time, are, or will be from the time presented or made through and including the Distribution Effective Time (and thereafter as relevant) true, correct and complete in all respects, provided that, notwithstanding anything to the contrary in this Agreement, Citrix rather than SpinCo shall be responsible for the accuracy of any such representation, warranty or covenant at the time presented or made (and, if applicable, through and including the Distribution Effective Time).
Spinco. (i) SpinCo hereby represents and warrants that (i) it has examined (A) the representation letter by and or on behalf of Ventas and SpinCo addressed to Tax Counsel and delivered in connection with the Tax Opinion and (B) any other information, documents or other materials delivered or deliverable by Ventas or SpinCo in connection with the Tax Opinion (all of the foregoing, collectively, the “Tax Opinion Documents”) and (ii) the facts presented and the representations made in the Tax Opinion Documents, to the extent descriptive of or in reference to the SpinCo Group or the SpinCo Business (including with respect to the plans, proposals, intentions and policies of the SpinCo Group), are true, correct and complete in all respects.
(ii) SpinCo hereby represents and warrants that during the two (2)-year period ending on the Distribution Date, there was no “agreement,” “understanding,” “arrangement,” “substantial negotiations” or “discussions” (as such terms are defined in Treasury Regulations Section 1.355-7(h)) by any one or more officers or directors of any member of the SpinCo Group or by any other person or persons with the implicit or explicit permission of one or more of such officers or directors regarding an acquisition of all or a significant portion of the Equity Securities of SpinCo (or any predecessor); provided, that no representation or warranty is made by SpinCo regarding any “agreement,” “understanding,” “arrangement,” “substantial negotiations” or “discussions” (as such terms are defined in Treasury Regulations Section 1.355-7(h)) by one or more officers or directors of Ventas.
Spinco. Spinco hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made in (i) the Opinion, (ii) the representation letter from SEACOR addressed to Counsel supporting the Opinion, (iii) the representation letter from Spinco addressed to Counsel supporting the Opinion and (iv) any other materials delivered or deliverable by SEACOR or Spinco in connection with the rendering by Counsel of the Opinion (all of the foregoing, collectively, the “Tax Materials”), to the extent descriptive of the Spinco Group (including the plans, proposals, intentions and policies of the Spinco Group), are, or will be from the time presented or made through and including the Effective Time and thereafter as relevant, true, correct and complete in all respects.
Spinco. At the Closing, Spinco will deliver or cause to be delivered to LMC:
(i) the Tax Sharing Agreement duly executed by an authorized officer of Spinco;
(ii) the Services Agreement duly executed by an authorized officer of Spinco;
(iii) the Facilities Sharing Agreement duly executed by an authorized officer of Liberty Property Holdings, Inc. (a Subsidiary of Spinco);
(iv) the Lease Agreement duly executed by an authorized officer of Liberty Property Holdings, Inc.;
(v) each Aircraft Time Sharing Agreement duly executed by an authorized officer of Spinco;
(vi) a secretary’s certificate certifying that the Spinco Board has authorized the execution, delivery and performance by Spinco of this Agreement, the Restructuring Agreements and the Other Agreements, which authorizations will be in full force and effect at and as of the Closing; and
(vii) such other documents and instruments as LMC may reasonably request.
Spinco. At the Closing, Spinco will deliver or cause to be delivered to LIC:
(i) the Tax Sharing Agreement duly executed by an authorized officer of Spinco;
(ii) the BuySeasons Services Agreement duly executed by an authorized officer of BuySeasons;
(iii) the Services Agreement duly executed by an authorized officer of Spinco;
(iv) the Facilities Sharing Agreement duly executed by an authorized officer of Spinco;
(v) the Assignment and Assumption Agreement relating to the Governance Agreement duly executed by an authorized officer of Spinco;
(vi) each Aircraft Time Sharing Agreement duly executed by an authorized officer of Spinco;
(vii) the Margin Loan Agreements duly executed by Spinco, a newly-formed, wholly-owned special purpose subsidiary of Spinco and the financial counterparties thereto;
(viii) the Intercompany Note duly executed by an authorized officer of Spinco;
(ix) a secretary’s certificate certifying that the Spinco Board has authorized the execution, delivery and performance by Spinco of this Agreement, the Restructuring Agreements and the Other Agreements, which authorizations will be in full force and effect at and as of the Closing; and
(x) such other documents and instruments as LIC may reasonably request.
