Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party. (b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties. (c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances. (d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed. (e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law. (f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities. (g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia. (h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction. (i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code. (j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law. (k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending. (l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes). (m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. (n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise. (o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement. (p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)). (q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country. (r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force. (s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code. (t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code. (u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired. (v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code. (w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Columbia Financial, Inc.), Merger Agreement (Stewardship Financial Corp)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 7.9, (i) has timely filed or has had timely filed on its behalf (taking into account any extension all Taxes relating to the Management Business required to be paid through the date hereof have been paid and all returns, declarations of time within which to file) each Return estimated Tax, Tax reports, information returns and statements required to be filed or sent by it in connection with the Management Business prior to the date hereof (other than those for which extensions shall have been granted prior to the date hereof) relating to any Taxing Authority in Taxes with respect to any income, properties or operations of any Taxesthe Management Company prior to the date hereof (collectively, each "Management Company Returns") have been duly filed; (ii) as of which was the time of filing, the Management Company Returns correctly completed reflected in all material respects and accurately reflected (and, as to any material Liability for Taxes Management Company Returns not filed as of the relevant Stewardship Entitydate hereof, will correctly reflect in all material respects) the facts regarding the income, business, assets, operations, activities and status of the Management Business and any Affiliate of such entity, covered by such Return, other information required to be shown therein; (ii) timely and properly paid (or had paid on its behalfiii) all Taxes relating to the operations of the Management Business that have been shown as due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the Management Company Returns have been timely paid and filed or adequate provisions made to the books of account and records of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Management Business; (iv) complied in connection with the Management Business (A) the Management Company has made provision on the Management Company Balance Sheet for all material respects Taxes payable for any periods that end on or before the Management Company Balance Sheet Date for which no Management Company Returns have yet been filed and for any periods that begin on or before the Management Company Balance Sheet Date and end after the Management Company Balance Sheet Date to the extent such Taxes are attributable to the portion of any such period ending on the Management Company Balance Sheet Date and (B) provision has been made for all Taxes payable for any periods that end on or before the date hereof for which no Management Company Returns have then been filed and for any periods that begin on or before the date hereof and end after such date to the extent such Taxes are attributable to the portion of any such period ending on such date; (v) no tax liens have been filed with all applicable Laws respect to any of the assets of the Management Business, and there are no pending tax audits of any Management Company Returns relating to the withholding of Taxes Management Business; and the payment thereof in connection with any amounts paid (vi) no deficiency or owing addition to any employeeTaxes, independent contractor, creditor, shareholder interest or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency penalties for any Taxes relating to the operation of the Management Business has been proposed, asserted or assessed against in writing (or any member of any affiliated or combined group of which the Management Company or any previous operator of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of Management Business was a member for which the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(eManagement Company could be liable), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fb) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and The Management Company is not a foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” person within the meaning of Section 280G ss.1.1445-2(b) of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Regulations under Section 280G 1445 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Management Services Agreement (BMJ Medical Management Inc), Management Services Agreement (BMJ Medical Management Inc)
Tax Matters. (a) Each The Corporation has filed all foreign, federal, state, county and local reports and returns or extensions with respect to Taxes required to be filed with the appropriate governmental agencies in all jurisdictions in which such reports and returns are required to be filed and all such reports and returns are true, correct and complete in all material respects as filed. All Taxes required to have been paid or accrued by the Corporation for any tax period ended on or before December 31, 1999 have been fully paid or are adequately provided for on the Audited Balance Sheet as of December 31, 1999. Since December 31, 1999, the Corporation has not incurred any liability for Taxes other than as a result of the Stewardship Entities operation of its business in the ordinary course, consistent with past practice. To the Corporation's knowledge, no issues have been raised which are currently pending by the Internal Revenue Service or any other taxing authority concerning the Corporation's liability for Taxes, or the liability of any person whose liability for Taxes is determined by reference to the taxable income of the Corporation, and no waivers of statutes of limitations have been given or requested with respect to the Corporation or any such person. There is no tax lien of any kind outstanding against the assets, property, or business of the Corporation. All deficiencies asserted or assessments made by the Internal Revenue Service or by any other taxing authorities with respect to Taxes with respect to the Corporation have been fully paid or are adequately provided for on the Audited Balance Sheet as of December 31, 1999 and no proposed (but unassessed) additional Taxes have been asserted and the Corporation does not know of any set of circumstances which exists that could give rise to any claim for Taxes with respect to any period ending on or before the Closing Date. Since January 1, 1997, there have been no audits of the Corporation conducted by the Internal Revenue Service. The Corporation: (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required not elected to be filed or sent by it treated as a collapsible corporation pursuant to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes Section 341(f) of the relevant Stewardship Entity, Code; and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or has not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of made any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating other elections pursuant to the withholding Code (other than elections that relate solely to matters of Taxes and the payment thereof in connection with any amounts paid accounting, depreciation, or owing to any employee, independent contractor, creditor, shareholder or other third party.
(bamortization) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to that would have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return a Material Adverse Effect. The Corporation has not since been filed.
(e) No deficiency for made any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardshipmaterial payments, is not obligated to make any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local material payments and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does is not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract agreement that would result, separately or in the aggregate, in the payment of under certain circumstances could obligate it to make any “excess parachute payments” within the meaning of material payments that will not be deductible under Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will . The Corporation is not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, tax allocation or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities sharing agreement. The Corporation (i) has not been a member of an affiliated group filing a consolidated Return federal income tax return (other than a group the common parent of which was Stewardship) or the Corporation), and (ii) has does not have any Liability liability for the Taxes of any Person entity (other than Stewardship or Stewardship Bankthe Corporation) under Treasury Regulations Section Regulation 1.1502-6 (or any similar provision of Lawstate, local, or foreign law), as a transferee or successor, by Contractcontract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Netvoice Technologies Corp), Securities Purchase Agreement (Netvoice Technologies Corp)
Tax Matters. (a) Each of Except as would not reasonably be expected to have, individually or in the Stewardship Entities aggregate, a Mavericks Material Adverse Effect, Mavericks and its Subsidiaries (i) has have duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be have been filed by or sent by it with respect to Mavericks or any Taxing Authority in respect of any Taxesits Subsidiaries, each of which was correctly completed and all such Tax Returns were true, correct and complete in all material respects when filed and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnwere prepared in compliance with applicable Law, (ii) have duly and timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof (whether or not shown as due on such Tax Returns), (iii) established on the books of account of the Stewardship Entitieshave adequate accruals and reserves, in accordance with GAAP GAAP, on the financial statements included in xxx Xxxxxxxxx SEC Documents for all Taxes payable by Mavericks and consistent with past practices, adequate reserves its Subsidiaries for all taxable periods and portions thereof through the payment date of any Taxes not then due and payable such financial statements and (iv) complied have not received written notice of any proposed or assessed deficiencies for any Tax from any taxing authority, against Mavericks or any of its Subsidiaries since January 1, 2016.
(b) Except as would not reasonably be expected to have, individually or in all the aggregate, a Mavericks Material Adverse Effect, no claim has ever been made in writing by a taxing authority of a jurisdiction where Mavericks or one of its Subsidiaries has not filed Tax Returns claiming that Mavericks or such Subsidiary is or may be subject to taxation by that jurisdiction that has not been resolved.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Mavericks Material Adverse Effect, neither Mavericks nor any of its Subsidiaries (i) is the subject of any currently ongoing tax audit or other proceeding with respect to Taxes nor has any Tax audit or other proceeding with respect to Taxes been proposed or threatened against any of them in writing, (ii) is subject to any pending requests for waivers of the time to assess any Tax or (iii) has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business). There are no material respects Liens for Taxes on any of the assets of Mavericks or any of its Subsidiaries other than Mavericks Permitted Liens.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Mavericks Material Adverse Effect, neither Mavericks nor any of its Subsidiaries (i) is a party to or bound by any written Tax allocation, indemnification (including indemnification of Taxes with all applicable respect to service-providers), sharing or similar agreement (other than an agreement with Mavericks or its Subsidiaries and other than customary indemnifications for Taxes contained in credit or other commercial agreements the primary purposes of which do not relate to Taxes), (ii) is or has, within the past six (6) years, been a member of an affiliated group (other than a group the common parent of which is Mavericks or includes only Mavericks and/or any of its Subsidiaries) filing a consolidated, combined, unitary or similar income Tax Return, or (iii) is liable under Treasury Regulation Section 1.1502-6 (or any similar provision of the Tax Laws relating of any state, local or foreign jurisdiction), or as a transferee or successor for any Tax of any Person other than Mavericks and its Subsidiaries.
(e) Except as would not reasonably be expected to have, individually or in the aggregate, a Mavericks Material Adverse Effect, Mavericks and its Subsidiaries have duly and timely withheld and paid to the withholding of appropriate taxing authority all Taxes required to have been withheld and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other LawThird Party.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against Neither Mavericks nor any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but its Subsidiaries was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment transaction intended to qualify under Section 355 of the Code that (i) took place during within the past two (2) year period ending on the date of this Agreement years or (ii) could otherwise constitute as part of a “plan” or “series of related transactions” (within plan that includes the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this AgreementMerger.
(pg) None Neither Mavericks nor any of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or its Subsidiaries has participated in any “confidential corporate tax shelterlisted transaction” (within the meaning of Treasury Regulation Section 301.61111.6011-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b))4.
(qh) None of Except as would not reasonably be expected to have, individually or in the Stewardship Entities has aggregate, a “permanent establishment” in any country other than the United StatesMavericks Material Adverse Effect, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by neither Mavericks nor any of the Stewardship Entities relating its Subsidiaries will be required to Taxes is currently in force.
(s) Each include any item of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authorityincome in, or adequately disclosed such transactions on exclude any item of deduction from, taxable income for a taxable period ending after the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment Closing Date as a result of the transactions contemplated by this Agreement that would not be deductible under any (i) adjustment pursuant to Section 404 or 162(m) 481 of the Code.
Code (uor any analogous provision of state, local or foreign Law) Except for a taxable period ending on or before the Closing Date, (ii) “closing agreement” as set forth on Schedule 4.20(u), none described in Section 7121 of the Stewardship Entities has been a member Code (or any analogous provision of any partnership state, local or joint venture foreign Law) executed on or prior to the holder of a beneficial interest in any trust for any period for which Closing Date, (iii) installment sale, intercompany transaction or open transaction disposition made on or prior to the statute of limitations for any Taxes potentially applicable as a result of such membership Closing Date, (iv) prepaid amount received on or holding has not expired.
prior to the Closing Date or (v) No property election by Mavericks or any of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person its Subsidiaries under the provisions of Section 168(f)(8108(i) of the Code (or any similar provision of state, local or foreign Law).
(i) Neither Mavericks nor any of its Subsidiaries has taken or agreed to take any action or knows of any fact or circumstance that could reasonably be expected to prevent or impede the Merger from qualifying as in effect prior to amendment by the Tax Reform Act of 1986), (ii) a “tax-exempt use propertyreorganization” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5368(a) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Vistra Energy Corp), Merger Agreement (Dynegy Inc.)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 7.9, (i) has timely filed or has had timely filed on its behalf (taking into account any extension all Taxes relating to the Management Business required to be paid through the date hereof have been paid and all returns, declarations of time within which to file) each Return estimated Tax, Tax reports, information returns and statements required to be filed or sent by it in connection with the Management Business prior to the date hereof (other than those for which extensions shall have been granted prior to the date hereof) relating to any Taxing Authority in Taxes with respect to any income, properties or operations of any Taxesthe Management Company prior to the date hereof (collectively, each "Management Company Returns") have been duly filed; (ii) as of which was the time of filing, the Management Company Returns correctly completed reflected in all material respects and accurately reflected (and, as to any material Liability for Taxes Management Company Returns not filed as of the relevant Stewardship Entitydate hereof, will correctly reflect in all material respects) the facts regarding the income, business, assets, operations, activities and status of the Management Business and any Affiliate of such entity, covered by such Return, other information required to be shown therein; (ii) timely and properly paid (or had paid on its behalfiii) all Taxes relating to the operations of the Management Business that have been shown as due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the Management Company Returns have been timely paid and filed or adequate provisions made to the books of account and records of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Management Business; (iv) complied in connection with the Management Business (x) the Management Company has made provision on the Management Company Balance Sheet for all material respects Taxes payable for any periods that end on or before the Management Company Balance Sheet Date for which no Management Company Returns have yet been filed and for any periods that begin on or before the Management Company Balance Sheet Date and end after the Management Company Balance Sheet Date to the extent such Taxes are attributable to the portion of any such period ending on the Management Company Balance Sheet Date and (y) provision has been made for all Taxes payable for any periods that end on or before the date hereof for which no Management Company Returns have then been filed and for any periods that begin on or before the date hereof and end after such date to the extent such Taxes are attributable to the portion of any such period ending on such date; (v) no tax liens have been filed with all applicable Laws respect to any of the assets of the Management Business, and there are no pending tax audits of any Management Company Returns relating to the withholding of Taxes Management Business; and the payment thereof in connection with any amounts paid (vi) no deficiency or owing addition to any employeeTaxes, independent contractor, creditor, shareholder interest or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency penalties for any Taxes relating to the operation of the Management Business has been proposed, asserted or assessed against in writing (or any member of any affiliated or combined group of which the Management Company or any previous operator of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of Management Business was a member for which the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(eManagement Company could be liable), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fb) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and The Management Company is not a foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” person within the meaning of Section 280G ss.1.1445-2(b) of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Regulations under Section 280G 1445 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Management Services Agreement (BMJ Medical Management Inc), Management Services Agreement (BMJ Medical Management Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e)6.1.17 or as would not have a Material Adverse Effect, there has (i) the Company and its Subsidiaries are in full compliance with any Applicable Law relating to Taxes, and have not been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return and are not in violation of any Applicable Law relating to Taxes, or liable under any Applicable Law relating to Taxes that have not been cured or may result in any Liability for the Company and/or any of its Subsidiaries, including, with respect to the acquisition by the Company of the Stewardship Entities for any totality of shares issued by CFM, the amortization of goodwill resulting from the merger of CFM into the Company; (ii) all Tax year subsequent Returns required to be filed by or with respect to the year ended December 31, 2015, nor is any Company and/or its Subsidiaries have been filed with the appropriate tax authorities in all jurisdictions in which such Tax audit or other proceeding pending, nor has there been any notice Returns are required to any of the Stewardship Entities by any Taxing Authority regarding any be filed; (iii) such Tax audit Returns were true, complete and correct, and all Taxes reported on such Tax Returns and all other Taxes due by the Company and/or its Subsidiaries as a taxpayer or other proceeding, noras party that may be deemed liable for the collection of Taxes by Applicable Law with respect to taxable events occurred until the Closing Date have been timely paid; (iv) there are no Actions pending or, to the Knowledge of StewardshipSeller, is threatened against the Company or any such Tax audit or other proceeding threatened with regard to of its Subsidiaries by any Taxes or Returns. There tax authority; (v) there are no outstanding subpoenas Liens for Taxes (other than for current Taxes not yet due or requests for information with respect to payable) upon the assets of the Company or any of its Subsidiaries and (vi) the Returns Company and its Subsidiaries have made any and all payments and has complied and are in compliance with all their obligations related to Taxes in connection with Environmental Law, Mining Rights and Real Estate and all such payments and obligations have been timely made or discharged, and all other requirements of Applicable Law relating to Taxes and applicable to Environmental Law, Mining Rights and Real Estate have been fully and faithfully complied with in all material respects, and neither the Company nor any of its Subsidiaries is in breach thereof. CSN Espanha is subject to corporate income tax under the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes general regime established by the Stewardship Entities. To the Knowledge laws in Spain, by means of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability which it could be available for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of CSN Espanha the application of Section 280G the exemption method, whereby no corporate income tax is imposed upon receipt of dividends and on the gains realized upon disposal of the Code.
(j) None of investment held in NMSA Madeira. CSN Espanha’s income arising from the Stewardship Entities will be required equity pick-up method related to include the investment in a taxable period ending after the Effective Time taxable income attributable NMSA Madeira is not subject to income that accrued tax in a taxable period prior Spain to the Effective Time but was extent that the Controlled Foreign Companies’ rules do not recognized apply to parent subsidiaries companies located in the European Union. Except for Tax purposes in such prior taxable period Sections 6.1.23 (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective TimeUndisclosed Liabilities) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
and 6.1.27 (k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(lDisclosure), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under notwithstanding any other provision of this Agreement to the Codecontrary, this paragraph contains the sole and exclusive representations and warranties of Seller with regard to tax matters.
Appears in 2 contracts
Samples: Share Purchase Agreement (National Steel Co), Share Purchase Agreement (National Steel Co)
Tax Matters. (a) Each of the Stewardship Entities (i) Except as disclosed in Schedule E, GenSci and each GenSci Subsidiary has timely filed or has had timely duly filed on its behalf (taking into account any extension of time within which to file) each Return a timely basis all Tax Returns required to be filed or sent by it with the appropriate Governmental Entity (and all such Tax Returns are complete and correct and have been prepared in compliance with all applicable laws and regulations), and has paid all Taxes (whether or not such Taxes are shown or required to be shown on a Tax Return so filed), including all instalments on account of Taxes for the current year, which are due and payable on or before the date hereof; adequate provision has been made for all such amounts payable for the current period for which Tax Returns are not yet required to be filed; adequate provision has been made in the GenSci US Financial Statements for all such amounts accruing or otherwise expected or incurred to or by GenSci US Subsidiary for the period covered by the GenSci US Financial Statements; all such amounts accruing or otherwise expected or incurred (net of positive adjustments) to or by GenSci US Subsidiary for the period to the Effective Time (and not already reflected in the GenSci US Financial Statements) do not exceed $100,000 in the aggregate (and, in the case of payroll taxes incurred, up to $180,000, which payroll taxes will be substantially remitted in the normal course of business to the Effective Time); there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any Tax Return by, or payment of any tax, governmental charge or deficiency by or against GenSci and each GenSci Subsidiary; to the best knowledge of GenSci there are no actions, suits, proceedings, investigations or claims commenced, threatened or contemplated against GenSci or any GenSci Subsidiary in respect of Taxes, or grounds for any material claim in respect thereof, or any matters under discussion with any Governmental Entity relating to Taxes asserted by any such Governmental Entity. The transactions contemplated under this Agreement and the Plan of Arrangement will not, at any time before or after the Effective Time, result in GenSci US Subsidiary having a material liability or material contingent or future liability for any amount or to any Taxing Authority Person (other than an obligation to pay fair value to a Dissenting Shareholder as contemplated in this Agreement) including, without limitation, any liability or contingent or future liability in respect of any TaxesTaxes (unless such liability or contingent or future liability would not exceed $100,000) or otherwise, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entityprovided, and any Affiliate of such entityhowever, covered by such Return, (ii) timely and properly paid (or had that GenSci US Subsidiary may have potential U.S. withholding liability on interest deemed paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) GenSci US Subsidiary Loans as a result of the application transactions contemplated under this Agreement, and provided that GenSci US Subsidiary may recognize gain and incur Tax liability solely as a result of an election by IsoTis, pursuant to Section 280G 338 of the Code.Code (a “338 Election”) to treat the acquisition of the GenSci US Subsidiary Shares as an acquisition of assets for United States federal income tax purposes and provided, additionally, that GenSci US Subsidiary may recognize gain, and incur Tax liability, upon the purchase by IsoTis of any assets of GenSci US Subsidiary prior to or on the Effective Date. In addition, and without limiting the generality of this §3.2(u),
(ji) None of the Stewardship Entities will GenSci US Subsidiary shall not be required to include in a taxable period ending after the Effective Time Date taxable income attributable to income that accrued in a prior taxable period prior to the Effective Time but was not recognized for Tax purposes in such any prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code accounting or Section 481 or of the Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.law, or for any other reason,
(kii) No closing agreementsthere is no jurisdiction in which GenSci US Subsidiary joins or has joined for any taxable period ending within the last six years, private letter rulings in the filing of any consolidated, combined or similar agreements or rulings have been entered into or issued by unitary Tax Return,
(iii) GenSci US Subsidiary has not been, at any Taxing Authority with respect time during the five years up to any of the Stewardship Entities which would be binding following and including the Effective TimeDate, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Real Property Holding Corporation (USRPHC) as defined in Section 897(c)(2) of the Code during the applicable period specified Code,
(iv) GenSci US Subsidiary has not carried on and does not carry on business in Section 897(c)(1)(A)(ii) Canada, GenSci US Subsidiary has not rendered and does not render any services in Canada (directly or through any agent or servant), no state of facts exists or has existed under which it could reasonably be deemed to be carrying on business in Canada or considered to be rendering services in Canada for purposes of the Code.
(n) None of the Stewardship Entities (i) Canadian Tax Act, and GenSci US Subsidiary has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has not had and does not have a “permanent establishment” or fixed place of business in any country other than Canada for purposes of the Canada-United StatesStates Tax Convention (1980), as such term is defined under any applicable Tax treaty between the United States and such other country.amended,
(rv) No power GenSci has no intention or plan, pursuant to this Agreement or otherwise, to liquidate or otherwise terminate the corporate existence of attorney granted GenSci, and
(vi) no deficiency (or liability or contingent or future liability or accrual or reserve in respect of Taxes) with respect to tax matters disclosed in Schedule E, or with respect to tax matters that are or should have been in the Tax Returns to be provided under §4.1(y), or with respect to liability under §160 or §247 of the Canadian Tax Xxx xx §000 of the Code or similar provisions, or with respect to tax matters caused by or in respect of any failure of GenSci (and/or any GenSci Subsidiary) to properly comply with contemporaneous documentation requirements reasonably suitable with respect to transfer pricing matters under the Canadian Tax Act or reasonably suitable with respect to transfer pricing methodology in compliance with s. 482 and 6662 (and any related sections) of the Code (and Treasury Regulations promulgated thereunder and any comparable provisions of Federal, state, provincial or local, domestic or foreign tax law) will or could (upon the passage of time or the occurrence of foreseeable events or otherwise), alone or in the aggregate, lead to a liability or contingent or future liability (net of positive adjustments) for Taxes for any Person, claim, action, suit, proceeding, investigation in respect of Taxes for any Person, reduction of losses or other favourable Tax attributes, or grounds for any of the Stewardship Entities relating foregoing, that alone or in the aggregate could have a financial impact or potential financial impact on GenSci US Subsidiary or on IsoTis or any IsoTis Subsidiary (or IsoTis designate referred to Taxes is currently in force.
§7.9) exceeding $100,000 in the aggregate (s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) excepting potential U.S. withholding on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions interest deemed paid on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment GenSci US Subsidiary Loans as a result of the transactions contemplated by under this Agreement that would not be deductible under Section 404 or 162(m) of the CodeAgreement).
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Arrangement Agreement (Isotis Sa), Arrangement Agreement (Isotis Sa)
Tax Matters. (a) Each of Assuming the Stewardship Entities Closing Agreement has been entered into or a REIT Determination has been issued by the IRS:
(i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which All material Tax Returns relating to file) each Return Hanover and the Hanover Subsidiaries required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that Closing Date have been timely filed or will exceed be timely filed (including those for which appropriate extensions have been obtained), (ii) all such Tax Returns are true, correct and complete in all material respects, (iii) all material Taxes relating to Hanover or any Hanover Subsidiary required to be paid on or prior to the estimated reserves Closing Date have been timely paid or reserved for in accordance with GAAP, (iv) all material Taxes relating to Hanover and the Hanover Subsidiaries for any taxable period (or a portion thereof) beginning on or prior to the Closing Date (which are not yet due and payable) have been properly reserved for in the Hanover SEC Documents, and (v) Hanover and the Hanover Subsidiaries have duly and timely withheld all material Taxes required to be withheld and such withheld Taxes have been either duly and timely paid to the proper Governmental Authority or properly set aside in accounts for such Taxes established by purpose and will be duly and timely paid to the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entitiesproper Governmental Authority.
(gi) Schedule 4.20(gNo audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes or material Return of Hanover or any Hanover Subsidiary as to which any taxing authority has asserted in writing any claim, (ii) lists all federalno Governmental Authority has asserted in writing any deficiency or claim for material Taxes or any adjustment to material Taxes (whether in connection with the Closing Agreement, statea REIT Determination, local and foreign income Returns filed or otherwise) with respect to the Stewardship Entities for taxable periods ended on which Hanover or after December 31, 2015, indicates those Returns that any Hanover Subsidiary may be liable with respect to income and other material Taxes which have not been audited fully paid or finally settled and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have (iii) no written claim has ever been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Authority in a jurisdiction where it does not file a Return, neither Hanover nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction its Subsidiaries files Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) None of Hanover or any Hanover Subsidiary (i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to or bound by or has any Contract that would resultobligation under any written Tax allocation, separately sharing or in similar agreement or arrangement other than with respect to the aggregategroup of which Hanover is the common parent, in the payment (ii) is or has been a member of any “excess parachute payments” within consolidated, combined or unitary group for purposes of filing Tax Returns or paying Taxes (other than the meaning group of Section 280G which Hanover is the common parent) or (iii) has any liability for Taxes of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of arising from the application of Treasury Regulation Section 280G 1.1502-6 or any analogous provision of the CodeLaw or as a transferee or successor by Contract or otherwise.
(jd) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was Hanover has not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any a spin-off transaction that could give rise to a Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of liability under Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii355(e) of the Code.
(ne) None No closing agreement pursuant to section 7121 of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 Code (or any similar provision of Law)state, as a transferee local or successor, foreign law) has been entered into by Contract, or otherwisewith respect to Hanover or any of its Subsidiaries.
(of) None To the Knowledge of Hanover, Hanover will not be required to include amounts in income, or exclude items of deduction, in a taxable period beginning after the Stewardship Entities constitutes either Closing Date as a “distributing corporation” result of (i) a change in method of accounting occurring prior to the Closing Date, (ii) an installment sale or open transaction arising in a “controlled corporation” taxable period (or portion thereof) ending on or before the Closing Date, (iii) a prepaid amount received, or paid, prior to the Closing Date or (iv) deferred gains arising prior to the Closing Date.
(g) Neither Hanover nor any of its Subsidiaries has taken any action or knows of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B368(a) of the Code.
(th) There is no ContractHanover, plan or arrangement(i) for all taxable years commencing with its taxable year ending 1997 through December 31, including this Agreement2007, pursuant has been subject to which any current or former employee taxation as a REIT within the meaning of any Section 856 of the Stewardship Entities would be entitled to receive any payment Code and has been organized and operated in conformity with the requirements for qualification and taxation as a result REIT for such years and if the merger is not consummated prior to December 31, 2008, for the taxable year that will end on December 31, 2008, (ii) has operated since January 1, 2008 to the date hereof in a manner that will permit it to qualify as a REIT for the taxable year that includes the date hereof, and (iii) intends to continue to operate in such a manner as to permit it to continue to qualify as a REIT for the taxable year that will end with the merger. To the Knowledge of Hanover, no challenge to its status as a REIT is pending or has been threatened in writing. No Subsidiary, excluding any Subsidiary in which Hanover holds 10% or less by both vote and value, within the meaning of Code Section 856(c)(4)(B)(iii), is a corporation for U.S. federal income tax purposes, other than a corporation that qualifies as a “qualified REIT subsidiary,” within the meaning of Section 856(i)(2) of the transactions contemplated by this Agreement that would not be deductible under Code, or as a “taxable REIT subsidiary,” within the meaning of Section 404 or 162(m856(1) of the Code.
(ui) Except as set forth on Schedule 4.20(uHanover and its Subsidiaries have not incurred any liability for material Taxes under sections 857(b), none of the Stewardship Entities has been a member of any partnership 860(c) or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) 4981 of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), which have not been previously paid and (ii) neither Hanover nor any Subsidiary has incurred any material liability for Taxes that have become due and that have not been previously paid other than in the ordinary course of business. Neither Hanover nor any Subsidiary (other than a “tax-exempt use propertytaxable REIT subsidiary” or any subsidiary of a “taxable REIT subsidiary”) has engaged at any time in any “prohibited transactions” within the meaning of Section 168(h857(b)(6) of the Code Code. To the Knowledge of Hanover, neither Hanover nor any Subsidiary has engaged in any transaction that would give rise to “redetermined rents, redetermined deductions and excess interest” described in section 857(b)(7) of the Code. To the knowledge of Hanover, no event has occurred, and no condition or circumstance exists, which presents a material risk that any material Tax described in the preceding sentences will be imposed on Hanover or any Subsidiary.
(iiij) “taxAs of the date hereof, Hanover does not have any earnings and profits attributable to Hanover or any other corporation in any non-exempt bond financed property” REIT year within the meaning of Section 168(g)(5) 857 of the Code.
(wk) None Each Subsidiary that is a partnership, joint venture, or limited liability company and which has not elected to be a “taxable REIT subsidiary” within the meaning of the Indebtedness of any Stewardship Entity constitutes Code Section 856(1) (i) “corporate has been since its formation treated for U.S. federal income tax purposes as a partnership or disregarded entity, as the case may be, and not as a corporation or an association taxable as a corporation and (ii) has not since the later of its formation or the acquisition indebtedness” by Hanover of a direct or indirect interest therein owned any assets (as defined in including securities) that have caused Hanover to violate Section 279(b856(c)(4) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under would cause Hanover to violate Section 163(i856(c)(4) of the CodeCode on the last day of any calendar quarter after the date hereof.
(l) To its Knowledge based on current estimates, and none of the interest on any such indebtedness Hanover does not believe that it will be disallowed required to pay any dividends prior to the Closing Date in order to maintain its status as a deduction under any other provision REIT within the meaning of Section 856 of the Code.
(m) Neither Hanover nor any of its Subsidiaries is a party to any “reportable transaction” as defined in Treasury Regulations Section 1.6011-4(b).
(n) Attached as Exhibit 5.12(n) to the Hanover Disclosure Letter is a true and complete copy of the submissions, including any exhibits or attachments thereto (each, an “Initial Submission”, and collectively, the “Initial Submissions”), delivered to the IRS on August 25, 2008 requesting that the IRS enter into the Closing Agreement, which constitute the only submissions or materials delivered by Hanover to the IRS as of the date hereof relating to the Closing Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hanover Capital Mortgage Holdings Inc), Merger Agreement (Hanover Capital Mortgage Holdings Inc)
Tax Matters. (a) Each of Except as disclosed in the Stewardship Entities AuRico Disclosure Letter, or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on AuRico:
(i) each of AuRico and the AuRico Subsidiaries has duly and timely made or prepared all Tax Returns required to be made or prepared by it, has duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects with the appropriate Governmental Entity and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, such Tax Returns are complete and any Affiliate of such entity, covered by such Return, correct;
(ii) each of AuRico and the AuRico Subsidiaries has: (A) duly and timely and properly paid (or had paid on its behalf) all Taxes due and payable by it; (B) duly and timely withheld all Taxes and other amounts required by Law to be withheld by it and has duly and timely remitted to the appropriate Governmental Entity such Taxes and other amounts required by Laws to be remitted by it; and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and services, harmonized sales, sales, value added, federal, provincial, state or territorial sales taxes, required by Laws to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Laws to be remitted by it;
(iii) the charges, accruals and reserves for all Tax periods Taxes reflected on the AuRico Financial Statements (whether or portions thereof not due and whether or not shown on such Returns, (iii) established on the books of account any of the Stewardship EntitiesTax Returns but excluding any provision for deferred income taxes) are, in accordance with the opinion of AuRico, adequate under Canadian GAAP and consistent IFRS to cover Taxes with past practices, adequate reserves respect to AuRico and the AuRico Subsidiaries for the payment periods covered thereby;
(iv) there are no investigations, audits or Claims now pending or to the knowledge of AuRico, threatened against any of AuRico or the AuRico Subsidiaries in respect of any Taxes not then due and payable there are no matters under discussion, audit or appeal with any Governmental Entity relating to Taxes;
(v) no waiver of any statutory limitation period with respect to Taxes has been given or requested with respect to AuRico or any of the AuRico Subsidiaries;
(vi) none of AuRico and the AuRico Subsidiaries has entered into any agreement or other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the Effective Date;
(ivvii) complied in none of AuRico and the AuRico Subsidiaries has acquired property from a non-arm’s length Person, within the meaning of the Tax Act: (A) for consideration the value of which is less than the fair market value of the property; or (B) as a contribution of capital for which no shares were issued by the acquirer of the property;
(viii) AuRico has made available to Northgate copies of all material respects with Tax Returns and for the 2007 to 2010 taxation years and all applicable Laws written communication to or from any Governmental Entity and relating to the withholding Taxes of Taxes any of AuRico and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.AuRico Subsidiaries;
(bix) Each for the purposes of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid Act and any underpayment penalties.other relevant Tax purposes:
(cA) There AuRico is resident in Canada; and
(B) each of the AuRico Subsidiaries is resident in the jurisdiction in which it was formed, and is not resident in any other country;
(x) there are no Encumbrances for Taxes upon any properties or assets of AuRico or any of the Stewardship Entities, except Permitted Encumbrances.AuRico Subsidiaries (other than Encumbrances relating to Taxes not yet due and payable and for which adequate reserves have been recorded on the most recent balance sheet included in the AuRico Financial Statements);
(dxi) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent AuRico was to the best of its knowledge, not a PFIC for its taxable year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of 2010 and expects that it will not be a PFIC for the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof taxable year ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns 2011; and
(xii) No amount that have been audited and indicates those Returns that currently are may be received (whether in cash or property or the subject vesting of audit. True and complete copies of the Returns of each of the Stewardship Entitiesproperty), as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge a result of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will Agreement, by any employee or other service provider of AuRico or an AuRico Subsidiary under any AuRico Benefit Plan or otherwise would not be a factor causing payments to be made deductible by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application reason of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (Code or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party subject to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of an excise tax under Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) 4999 of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Arrangement Agreement (AuRico Gold Inc.), Arrangement Agreement (Northgate Minerals CORP)
Tax Matters. Except as set forth on the Buyer Disclosure Schedule:
(a) Each of the Stewardship Entities (i) Buyer and any affiliated, combined or unitary group of which Buyer is or was a member for purposes of any Taxes has timely filed filed, been included in or has had sent, and will, prior to the Closing, timely filed on its behalf (taking into account any extension of time within which to file) each Return , be included in or send all Returns required to be filed or sent by it or relating to any Taxing Authority in of them prior to the Closing relating to any Taxes with respect to any income, properties or operations of Buyer prior to the Effective Time;
(b) as of the time of filing, the Returns:
(i) correctly reflected (and, as to any TaxesReturns not filed as of the date hereof, each of which was will correctly completed reflect) in all material respects the facts regarding the income, business, assets, operations, activities and accurately reflected any material Liability for Taxes status of the relevant Stewardship Entity, Buyer and any Affiliate of such entity, covered by such Return, other information required to be shown therein;
(ii) constitute (and, as to any Returns not filed as of the date hereof, will constitute) complete and accurate representations of the Tax liabilities for the periods covered; and
(iii) accurately set forth all items (to the extent required to be included or reflected in the Returns) relevant to future Tax liabilities, including the Tax bases of properties and assets;
(c) Buyer has timely and properly paid (or had paid on its behalf) all Taxes that have been shown as due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, Returns that have been filed;
(d) Buyer has established a reserve (in accordance with GAAP generally accepted principles) on Buyer's Interim Financial Statements for any Taxes that relate to past periods but are not yet due; and consistent with past practiceswill establish such a reserve for all other Taxes payable for any periods that end before the Closing for which no Returns have yet been filed and for any periods that begin before the Closing and end after the Closing to the extent such Taxes are attributable to the portion of any such period ending at the Closing;
(e) the charges, adequate accruals and reserves for Taxes reflected on Buyer's Interim Financial Statements are adequate to cover the Tax liabilities accruing or payable by Buyer in respect of periods prior to the date hereof;
(f) Buyer is not delinquent in the payment of any Taxes and has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file or send any Return, which Return has not since been filed.filed or sent;
(eg) No to Buyer's knowledge, no deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Buyer (or any Return member of any affiliated or combined group of which Buyer is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities a member for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests which Buyer could be liable for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.Taxes);
(h) To the Knowledge of Stewardship, none Buyer has not granted any extension of the Stewardship Entities limitation period applicable to any Tax claims and Buyer has not waived any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.limitation period;
(i) Except Buyer is not and has not been a party to any tax sharing agreement with any corporation which, as set forth on Schedule 4.20(i)of Buyer, none is not a member of the Stewardship Entities affiliated group of which Buyer is a member;
(j) Buyer has not made any election under Section 341(f) or Section 1362(a) of the Code;
(k) no Tax is required to be withheld pursuant to Section 1445 of the Code as a result of the transactions contemplated in this Agreement;
(l) neither Buyer nor any affiliate is a party to any Contract agreement, contract plan or arrangement that has resulted or would result, separately or in the aggregate, in the payment of any “"excess parachute payments” " within the meaning of Section 280G of the Code, Code and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person Buyer that are not deductible (in whole or in part) as a result of the application of under Section 280G of the Code.;
(jm) None to Buyer's knowledge, no examinations of the Stewardship Entities will be required to include Returns of Buyer is currently in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior progress or, to the Effective Time but was not recognized for Tax purposes in such prior taxable period (best knowledge of Buyer, threatened and no deficiencies have been asserted or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) assessed against either Buyer as a result of any audit by the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 Internal Revenue Service or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, other taxing authority and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank deficiency has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.proposed or threatened; and
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return there are no liens for Taxes (other than a group for current Taxes not yet due and payable) upon the common parent assets of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwiseBuyer.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Cafe Odyssey Inc), Merger Agreement (Rodriguez Marcos & Sonya Nance Childrens Trust No 2)
Tax Matters. Except as set forth in the Chancellor Disclosure Letter or the Chancellor SEC Documents, (aA) Each Chancellor and each of the Stewardship Entities (i) has its subsidiaries have timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return with the appropriate taxing authorities all material Tax Returns required to be filed through the date hereof and will timely file any such material Tax Returns required to be filed on or sent by it prior to any Taxing Authority in respect of any Taxes, each of which was correctly completed the Closing Date (except those under valid extension) and all such Tax Returns are and will be true and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalfB) all Taxes of Chancellor and each of its subsidiaries shown to be due and payable for all on the Tax periods Returns described in (A) above have been or portions thereof whether or not shown on such Returnswill be timely paid, (iiiC) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all no material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency deficiencies for any Taxes has have been proposed, asserted or assessed against Chancellor or any of the Stewardship Entities its subsidiaries that has have not been resolved fully paid or adequately provided for in the appropriate financial statements of Chancellor and paid in full. No waiverits subsidiaries, extension or comparable consent given by any and no power of the Stewardship Entities regarding the application of the statute of limitations attorney with respect to any Taxes has been executed or filed with any taxing authority and no material issues relating to Taxes have been raised in writing by any governmental authority during any presently pending audit or examination, (D) Chancellor and its subsidiaries are not now subject to audit by any taxing authority and no waivers of statutes of limitation with respect to the Tax Returns have been given by or requested in writing from Chancellor or any Return of its subsidiaries, (E) there are no material liens for Taxes (other than for Taxes not yet due and payable) on any assets of Chancellor or any of its subsidiaries, (F) neither Chancellor nor any of its subsidiaries is outstandinga party to or bound by (nor will any of them become a party to or bound by) any tax indemnity, tax sharing, tax allocation agreement, or similar agreement, arrangement or practice with respect to Taxes, (G) neither Chancellor nor any of its subsidiaries has ever been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code, other than the affiliated group of which Chancellor is the common parent, (H) neither Chancellor nor any of its subsidiaries has filed a consent pursuant to the collapsible corporation provisions of Section 341(f) of the Code (or any corresponding provision of state or local law) or agreed to have Section 341(f)(2) of the Code (or any corresponding provisions of state or local law) apply to any disposition of any asset owned by Chancellor or any of its subsidiaries, as the case may be, (I) neither Chancellor nor any of its subsidiaries has agreed to make, nor is any request for required to make, any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to adjustment under Section 7121 481(a) of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued law by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part reason of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) change in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.accounting method or
Appears in 2 contracts
Samples: Merger Agreement (Chancellor Media Corp of Los Angeles), Agreement and Plan of Merger (Hicks Thomas O)
Tax Matters. (a) Each Except as set forth in Section 3.11(a) of the Stewardship Entities (i) Seller Disclosure Schedule, Seller has timely in accordance with all Applicable Laws filed or has had timely filed on its behalf (taking into account any extension of time within all Tax Returns and/or extensions which to file) each Return are required to be filed filed, and has paid, or sent made adequate provision for the payment of, all Taxes which have or may become due and payable pursuant to said Tax Returns and all other governmental charges and assessments received to date other than those Taxes being contested in good faith for which adequate provision has been made on the most recent balance sheet forming part of Seller Financial Statements. The Tax Returns of Seller and each Seller Subsidiary have been prepared in all material respects in accordance with all Applicable Laws and generally accepted principles applicable to taxation consistently applied. All Taxes which Seller and each Seller Subsidiary is required by it law to withhold and collect have been duly withheld and collected, and have been paid over, in a timely manner, to the proper Authorities to the extent due and payable. Except as set forth in Section 3.11(a) of the Seller Disclosure Schedule, adequate provision has been made on the most recent balance sheet forming part of Seller Financial Statements for all Taxes accrued through the date of such balance sheet of any Taxing Authority kind, including interest and penalties in respect thereof, whether disputed or not, and whether past, current or deferred, accrued or unaccrued, fixed, contingent, absolute or other, and, except as set forth in Section 3.11(a) of any Taxesthe Seller Disclosure Schedule, there are, to Seller's knowledge, no past transactions or matters which could result in additional Taxes of a material nature to Seller and each Seller Subsidiary for which an adequate reserve has not been provided on such balance sheet.
(b) The information shown on the federal income Tax Returns of Seller and each Seller Subsidiary for each of the most recent three (3) tax years (true and complete copies of which was correctly completed have, to the extent requested by ATS, been furnished by Seller to ATS) is true, accurate and complete in all material respects and fairly and accurately reflected reflects the information purported to be shown. Federal and state income Tax Returns of Seller and each Seller Subsidiary have not been examined by the IRS or applicable state Authority, and none of Seller or any material Liability for Taxes Seller Subsidiary has been notified of any proposed examination, except as shown in Section 3.11(b) of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesSeller Disclosure Schedule.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Seller or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities Seller Subsidiary is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement tax sharing agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes)arrangement.
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Lenfest Communications Inc), Asset Purchase Agreement (American Tower Systems Corp)
Tax Matters. (a) Each The Sellers have provided the Buyer a true and complete copy of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such ReturnsReturns filed by each Seller since January 1, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party1994.
(b) Each Except as set forth in SCHEDULE 5.7(B), all Tax Returns required to be filed before the Closing Date in respect of each Seller have been filed on a timely basis, and each Seller has paid when due, Taxes required to be paid in respect of the Stewardship Entities periods covered by such Tax Returns and has made adequately reserved for the payment of all Taxes with respect to periods ended on or before the Closing Date for which tax returns have not yet been filed. All Taxes of each Seller have been paid or adequately provided for, there are not any proposed additional Tax assessments against any Seller not adequately provided for in the June 30, 1997 Combined Balance Sheet. There are no unpaid Taxes which are or could become an Encumbrance on the Purchased Property. No Tax liens have been filed against the Purchased Property of any Seller and there are no audits pending with respect to any Seller with any Governmental Authority. The charges, accruals and reserves with respect to Taxes on the books of each Seller are adequate (as determined in accordance with GAAP). All Taxes that any Seller is or caused to be made on its behalf) all estimated Tax payments was legally required to withhold or collect have been made duly withheld or collected and, to avoid any underpayment penaltiesthe extent required, have been paid to the proper Governmental Authority.
(c) There are no Encumbrances for Taxes upon any assets To the knowledge of any of the Stewardship Entitieseach Seller and each Executive Shareholder, except Permitted Encumbrances.
(dSCHEDULE 5.7(C) None of the Stewardship Entities has requested any extension of time within which sets forth each state and locality with jurisdiction to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for impose any Tax year subsequent to on the year ended December 31, 2015, nor is Purchased Property or the Business at any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or time prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship EntitiesClosing Date. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported Sellers represent that they have properly and timely filed all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under be filed in such jurisdictions on or before the provisions of Closing Date. Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.5.8
Appears in 2 contracts
Samples: Asset Purchase Agreement (Magellan Health Services Inc), Asset Purchase Agreement (Magellan Health Services Inc)
Tax Matters. (a) Each of the Stewardship Entities Seller has (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnit, (ii) timely and properly paid (or had paid on its behalf) all Taxes shown to have become due pursuant to such Tax Returns and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established paid all other Taxes for which a notice of assessment or demand for payment has been received. All Tax Returns are true, correct and complete; have been prepared in accordance with all applicable laws and requirements; and accurately reflect the taxable income (or other measure of tax) of Seller. The accruals for Taxes, other than Income Taxes, contained in the Closing Balance Sheet will be adequate to cover all liabilities for Taxes, other than Income Taxes, of Seller for all periods ending on or before the Closing Date in accordance with GAAP, and nothing has occurred subsequent to such dates to make any of such accruals inadequate. All Taxes, other than Income Taxes, of Seller for periods after June 30, 1998 through the Closing Date have been paid or are adequately reserved against on the books of account of the Stewardship Entities, in accordance with GAAP Seller. Seller has timely filed all information returns or reports that are required to be filed and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in has accurately reported all material respects with all applicable Laws relating information required to the withholding of Taxes and the payment thereof in connection with any amounts paid be included on such returns or owing to any employee, independent contractor, creditor, shareholder or other third partyreports.
(b) Each Except as disclosed on Schedule 3.16 hereto, there are no proposed assessments of Taxes against Seller, no proposed adjustments to any Tax Return pending against Seller and no proposed adjustments to the Stewardship Entities manner in which any Tax of Seller is determined. Except as disclosed on Schedule 3.16 hereto, each Tax Return of Seller has made been audited by the relevant authorities (and all deficiencies or caused to be made on its behalf) all estimated Tax payments required to proposed deficiencies resulting from such audits have been made to avoid any underpayment penalties.
(c) There paid or are no Encumbrances adequately provided for Taxes upon any assets of any of in the Stewardship EntitiesFinancial Statements), except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes each Tax Return or any Tax payment has expired, and no Tax Return is outstanding, nor is under examination by any request for any such waiver or consent pendingtaxing authority. Except as set forth on Schedule 4.20(e), there No claim has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities made by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes taxing authority in a jurisdiction where it Seller does not pay Taxes or file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Seller is or may be subject to taxation by that jurisdiction.
(ic) Except as set forth disclosed on Schedule 4.20(i)3.16 hereto, none Seller has never (i) executed a waiver or consent extending any statute of the Stewardship Entities is a party to limitation for any Contract Tax liability that would resultremains outstanding, separately (ii) joined in or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be been required to include join in filing a taxable period ending after consolidated or combined federal, state or local income Tax Return, (iii) been the Effective Time taxable income attributable to income subject of a Tax ruling that accrued in will have continuing adverse effect following the Closing, (iv) been the subject of a taxable period prior to closing agreement with any taxing authority that will have continuing adverse effect following the Effective Time but was not recognized for Tax purposes in such prior taxable period Closing, or (or to exclude from taxable income in v) granted a taxable period ending after the Effective Time any deduction the recognition power of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority attorney with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pendingTax matter that has continuing adverse effect.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Business Transfer Agreement (FSC Semiconductor Corp), Business Transfer Agreement (Fairchild Semiconductor Corp)
Tax Matters. (a) Each of Except as disclosed on Schedule 3.8, PPR and the Stewardship Entities PPR Subsidiaries have (i) has duly and timely filed (or there has had timely been duly filed on its behalf (taking into account any extension of time within which to filetheir behalf) each Return all Tax Returns required to be filed by or sent by it with respect to any Taxing Authority in respect of any TaxesPPR and/or the PPR Subsidiaries, each of which was correctly completed including all foreign, federal, Puerto Rican and local Tax Returns, and all such Tax Returns were true, accurate and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) withheld and collected all Taxes that are required by applicable laws, rules or regulations to be withheld and collected and (iii) paid in full on a timely and properly paid basis (or had there have been paid on its their behalf) all Taxes shown to be due and payable for all Tax periods or portions thereof whether or not shown on such Tax Returns, (iii) established . The reserve for Taxes on the books December 31, 1998 consolidated balance sheet contained in PPR's Form 10-K for the period ending December 31, 1998 for the payment of account of all accrued but unpaid Taxes through the Stewardship Entities, date thereof has been determined in accordance with GAAP and consistent with past practices, is adequate reserves in amount for the payment of any all liabilities for Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes for which PPR and the payment thereof PPR Subsidiaries are liable for the periods up to and including December 31, 1998. Neither PPR nor the PPR Subsidiaries have incurred any Tax liabilities since December 31, 1998, other than those Tax liabilities arising in connection the ordinary course of business and consistent with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partyprior periods.
(b) Each Except as described on Schedule 3.8, neither PPR nor the PPR Subsidiaries has received any notice of a deficiency or assessment (and none has been threatened) with respect to Taxes of PPR or the PPR Subsidiaries from any foreign, federal, Puerto Rico or local taxing authority which has not been fully paid or finally settled; there are no ongoing audits or examination of any Tax Return which includes PPR or the PPR Subsidiaries and no notice of audit or examination of any such Tax Return has been received by PPR or any of the Stewardship Entities PPR Subsidiaries (and none has made (been threatened); PPR or caused to be made the PPR Subsidiaries have not given and there has not been given on its behalf) all estimated Tax payments required or their behalf a waiver or extension of any statute of limitations relating to have the payment of Taxes of PPR or the PPR Subsidiaries; and no issue has been made raised in writing on audit or in any other proceeding with respect to avoid Taxes of PPR or the PPR Subsidiaries by any underpayment penaltiesforeign, federal, Puerto Rico, or local taxing authority.
(c) There are no Encumbrances for Taxes upon any assets For purposes of any of this Agreement, (i) the Stewardship Entitiesterms "Tax" and "Taxes" shall mean all taxes, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Returncharges, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposedfees, asserted levies, penalties or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given other assessments imposed by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes United States or any Return is outstandingPuerto Rican, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and or foreign income Returns filed with respect taxing authority, including, but not limited to, income, excise, property, sales, transfer, franchise, payroll, employment, unemployment, back-up withholding, gains, withholding, ad valorem, social security or other taxes, including any interest, penalties or additions attributable to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codetaxes, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has the term "Tax Return" shall mean any Liability return, declaration, report, claim for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contractrefund, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” information return or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities statement relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangementTaxes, including this Agreement, pursuant to which any current schedule or former employee of attachment thereto and any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Codeamendments thereof.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Dakota Exchange Agreement (P-Pr Transfer LLP), Dakota Exchange Agreement (Pepsi Cola Puerto Rico Bottling Co)
Tax Matters. (a) Each of the Stewardship Entities (i) Seller has duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalffiled (or, if not filed, has obtained valid extensions to file) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federalmaterial Federal, state, local and foreign income income, franchise, excise, payroll, sales and use, property and withholding tax returns, reports, estimates and information and other statements or returns (collectively, "Tax Returns") required to be filed by or on behalf of it pursuant to any applicable Federal, state, local or foreign tax laws for all years and periods for which such Tax Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those have become due. All such Tax Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, were correct in all material respects as filed and correctly reflect in all material respects the Federal, state, local and foreign income, franchise, excise, payroll, sales and use, property, withholding and other taxes, duties, imposts and governmental charges (and charges in lieu of any thereof), together with interest, additions to tax and penalties (collectively, "Taxes") required to be paid or collected by (or allocable to) the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to ColumbiaSeller.
(hb) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability There are no Liens for Taxes upon any property of Seller except for Permitted Liens. All amounts required to be withheld by Seller from its employees for income taxes, social security and other payroll Taxes have been collected and withheld, and paid to the respective governmental agencies, or set aside in accounts for such purpose, or accrued, reserved against and entered upon Seller's books and records.
(c) No written currently unresolved claim has ever been made by a taxing authority in a jurisdiction where it Seller does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Seller is or may be subject to taxation Taxes assessed by that such jurisdiction.
(d) Seller (i) Except as set forth has paid or caused to be paid all material Taxes required to be paid by it through the date hereof and (ii) has properly and fully accrued on Schedule 4.20(i)its financial statements referred to in Section 5.4 above, none all material Taxes for any period from the date of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made last reporting period covered by any of Tax Returns up to and including the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Codedate hereof.
(je) None There is no pending or potential audit, dispute or claim concerning any Tax Return or Tax liability of the Stewardship Entities will be required to include Seller now in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior progress or, to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingSeller's best knowledge, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Lawthreatened against Seller.
(kf) No closing agreements, private letter rulings or similar agreements or rulings have Seller is not and has not been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes)sharing agreement.
(mg) Neither Stewardship nor Stewardship Bank Seller has never been included in a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) consolidated, unitary, combined or other such Tax Return with another entity. Seller has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability no liability for the Taxes of any Person other person (other than Stewardship or Stewardship BankSeller) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of Law)state, local or foreign law) as a transferee or successor, successor by Contract, contract or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Osi Pharmaceuticals Inc), Asset Purchase Agreement (Cadus Pharmaceutical Corp)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 2.12 attached hereto:
(i) has timely the Company and its Subsidiaries have filed or has had timely filed on its behalf (taking into account any extension of time within all Tax Returns which to file) each Return it is required to be filed or sent by it to any Taxing Authority in respect of any Taxesfile under applicable laws and regulations, each of which was correctly completed and all such Tax Returns are true, complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, have been prepared in compliance with all applicable laws and any Affiliate of such entity, covered by such Return, regulations;
(ii) timely the Company and properly its Subsidiaries have paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owing by them (whether or not such Taxes are shown or required to be shown on such Returns, (iiia Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due have withheld and payable and (iv) complied in all material respects with all applicable Laws relating paid over to the withholding of appropriate Taxing Authority all Taxes and the payment thereof in connection with any which they are required to withhold from amounts paid or owing to any employee, independent contractorshareholder, creditor, shareholder creditor or other third party.;
(biii) Each of neither the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of Company nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries has requested waived any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or agreed to any extension of time for filing any Tax Return is outstandingwhich has not been filed; and neither the Company nor any of its Subsidiaries has consented to extend to a date later than the date hereof the period in which any Tax may be assessed or collected by any Taxing Authority;
(iv) the unpaid Taxes of the Company and its Subsidiaries (A) did not, nor is as of the date of the Most Recent Balance Sheet, exceed the reserve for Tax Liability (excluding any request (i) provision for any such waiver or consent pending. Except as deferred Taxes established to reflect timing differences between book and Tax income, and (ii) general reserves) set forth in the Most Recent Balance Sheet (other than in any notes thereto) and (B) do not exceed that reserve as adjusted for effects on Schedule 4.20(e)Tax Liabilities for income earned, there has been losses incurred and Taxes paid in the ordinary course of business from the date of such balance sheet through the Closing Date, which accruals shall be adjusted in accordance with the past custom and practice of the Company and its Subsidiaries in filing their Tax Returns, for income earned, losses incurred and Taxes paid in the ordinary course of business during such period;
(v) no Tax audit foreign, federal, state or other local tax audits or assessments or administrative proceeding or court proceeding judicial proceedings are pending or being conducted or are expected to occur with regard respect to any Taxes the Company or any Return of its Subsidiaries;
(vi) there are no unresolved questions or claims concerning the Company's or any of its Subsidiaries' Tax Liability; there are no Liens on any of the Stewardship Entities for assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax;
(vii) no claim has ever been made by a Taxing Authority in a jurisdiction where the Company or any of its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries are or may be subject to Taxes assessed by such jurisdiction;
(viii) neither the Company nor any of its Subsidiaries has been a member of an Affiliated Group or filed or been included in a combined, consolidated or unitary income Tax Return;
(ix) neither the Company nor any of its Subsidiaries is a party to or bound by or has any obligation under any Tax year subsequent to allocation or Tax sharing agreement or similar contract or arrangement, or an agreement that obligates the year ended December 31, 2015, nor is any such Tax audit Company or other proceeding pending, nor has there been any notice to any of its Subsidiaries to make any payment computed by reference to Taxes, taxable income or taxable losses of any other Person (other than agreements entered into with employees, consultants or independent contractors or in connection with purchase or sale agreements or sale leasebacks); and
(x) neither the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to Company nor any of the Returns its Subsidiaries shall be required to (i) as a result of any a change in method of the Stewardship Entities. None of the Stewardship Entities has entered into accounting for a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax taxable period or portion thereof ending on or prior to the Effective Time that will exceed Closing Date, include any adjustment in taxable income for any taxable period (or portion thereof) ending after the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of StewardshipClosing Date, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in partii) as a result of the application of any "closing agreement," as described in Section 280G 7121 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period Code (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions corresponding provision of state, local or foreign income Tax Lawlaw), include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, (iii) as a result of any sale reported on the installment method where such sale occurred on or prior to the Closing Date, include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, or (iv) as a result of any prepaid amount received on or prior to the Closing Date (other than amounts prepaid in the ordinary course of business consistent with past custom and practice), include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date.
(kb) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to Neither the Company nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.its Subsidiaries:
(li) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.;
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability made an election under Section 341(f) of the Code;
(iii) is liable for the Taxes of any another Person (other than Stewardship or Stewardship BankA) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision comparable provisions of Lawstate, local or foreign law), (B) as a transferee or successor, (C) by Contract, contract or indemnity or (D) otherwise.;
(oiv) None is a party to any agreement, arrangement, contract or plan that has resulted or will result, individually or in the aggregate in the payment of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (any "excess parachute payments" within the meaning of Section 355(a)(1)(A) 280G of the Code; or
(v) has consented to extend the time, or is the beneficiary of any extension of time, in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement which any Tax may be assessed or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated collected by this Agreementany Taxing Authority.
(pc) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable The Company and its Subsidiaries have disclosed on their federal income Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported Returns all transactions positions taken therein that could give rise to an underpayment a substantial understatement of federal income Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Agrilink Foods Inc), Unit Purchase Agreement (Pro Fac Cooperative Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed (A) All material Tax Returns that were or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return are required to be filed by or sent by it with respect to any Taxing Authority in respect of any TaxesNB&T Financial and its Subsidiaries have been duly and timely filed, each of which was correctly completed or an appropriate extension has been granted, and all such Tax Returns are true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalfB) all Taxes due and payable for all Tax periods or portions thereof (whether or not required to be shown on such Returns, (iii) established to be due on the books Tax Returns referred to in clause (i)(A) of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (ivthis Section) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent and (C) no unexpired waivers of statutes of limitation have been given by any of the Stewardship Entities regarding the application of the statute of limitations or requested with respect to any Taxes of NB&T Financial or its Subsidiaries. NB&T Financial has made available to Peoples true and correct copies of the United States federal income Tax Returns filed by NB&T Financial and its Subsidiaries for each of the three most recent fiscal years. Neither NB&T Financial nor any Return is outstanding, nor is of its Subsidiaries has any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding material liability with regard respect to any Taxes or any Return of any in excess of the Stewardship Entities for any Tax year subsequent to amounts accrued with respect thereto that are reflected in the year ended December financial statements in NB&T Financial SEC Reports or that have arisen in the ordinary and usual course of business since March 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of 2014. The accruals and reserves for Taxes reflected in financial statements in NB&T Financial SEC Reports are adequate for the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returnsperiods covered. There are no outstanding subpoenas Liens for Taxes upon the assets of NB&T Financial or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement its Subsidiaries other than Liens for current Taxes not yet due and payable.
(ii) No Tax is required to be withheld pursuant to Section 7121 1445 of the Code or any similar provision under any other Lawas a result of the transactions contemplated by this Agreement.
(fiii) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period NB&T Financial and its Subsidiaries have withheld or portion thereof ending on or prior collected and paid over to the Effective Time that will exceed the estimated reserves appropriate Governmental Authorities, or are properly holding for such payment, all Taxes established required by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims law to be withheld or disputes concerning the Liability for Taxes of any of the Stewardship Entitiescollected.
(giv) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to No claim has been made within the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the past six years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Authority in a jurisdiction where it does NB&T Financial or any of its Subsidiaries do not file a Return, nor has Tax Returns that NB&T Financial or any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it its Subsidiaries is or may be subject to taxation by that jurisdictionjurisdiction nor, to the Knowledge of NB&T Financial, is there any factual basis for any such claim.
(iv) Neither NB&T Financial nor any of its Subsidiaries has applied for any ruling from any Governmental Authority with respect to Taxes nor entered into a closing agreement (or similar arrangement) with any Governmental Authority.
(vi) Except as set forth in NB&T Financial’s Disclosure Schedule, neither NB&T Financial nor any of its Subsidiaries has been audited by any Governmental Authority for taxable years ending on Schedule 4.20(i)or subsequent to December 31, none of the Stewardship Entities is a party to any Contract that would result, separately 2008. No Tax audit or in the aggregate, in the payment administrative or judicial Tax proceedings of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments Governmental Authority are pending or being conducted with respect to be made by NB&T Financial or any of its Subsidiaries and, to the Stewardship Entities Knowledge of NB&T Financial, no such audit or other proceeding has been threatened. No Governmental Authority is now asserting, or, to the Knowledge of NB&T Financial, is threatening to assert against NB&T Financial or any other Person that are not deductible (in whole of its Subsidiaries any deficiency or in part) as a result of the application of Section 280G of the Codeclaim for additional Taxes.
(jvii) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to Neither NB&T Financial nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
its Subsidiaries (lA) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocationallocation or sharing agreement, sharingexcept among themselves, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (iB) has ever been a member of an affiliated group filing a consolidated Return (of corporations, within the meaning of Section 1504 of the Code, other than a an affiliated group of which NB&T Financial is or was the common parent of which was Stewardship) corporation (the “NB&T Financial Group”), or (iiC) has any Liability liability for the Taxes of any Person person (other than Stewardship or Stewardship Bankmembers of the NB&T Financial Group) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contractcontract, or otherwise.
(oviii) None Except as Previously Disclosed, neither NB&T Financial nor any of the Stewardship Entities constitutes either a “distributing corporation” its Subsidiaries has agreed to any extension of time with respect to any Tax Return or a “controlled corporation” (within the meaning Tax assessment or deficiency, and no such extension of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreementtime has been requested.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(uix) Except as set forth on Schedule 4.20(u)in NB&T Financial’s Disclosure Schedule, none neither NB&T Financial nor any of the Stewardship Entities its Subsidiaries has been a member of agreed, nor is it required, to make any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person adjustment under the provisions of Section 168(f)(8481(a) of the Code by reason of a change in accounting method or otherwise that will affect its liability for Taxes.
(x) Except as set forth in effect prior NB&T Financial’s Disclosure Schedule, there is no joint venture, partnership, limited liability company, or other arrangement or contract to amendment by which NB&T Financial or a Subsidiary is a party that is treated as a partnership for Tax purposes.
(xi) NB&T Financial has not taken any action and is not aware of any fact or circumstance that would reasonably be expected to prevent the Tax Reform Act of 1986), (ii) Merger from qualifying as a “tax-exempt use propertyreorganization” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5368(a) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Peoples Bancorp Inc), Merger Agreement (Nb&t Financial Group Inc)
Tax Matters. Except as disclosed by Goldcorp or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Goldcorp:
(ai) Each of Goldcorp, the Stewardship Entities (i) Goldcorp Material Subsidiaries and, to the knowledge of Goldcorp, the Goldcorp Significant Interest Companies, has duly and timely made or prepared all Tax Returns required to be made or prepared by it, has duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxeswith the appropriate Governmental Entity and has, each of which was correctly completed in all material respects respects, completely and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, correctly reported all income and any Affiliate of such entity, covered by such Return, all other amounts or information required to be reported thereon.
(ii) Each of Goldcorp, the Goldcorp Material Subsidiaries and, to the knowledge of Goldcorp, the Goldcorp Significant Interest Companies, has (A) duly and timely and properly paid (or had paid on its behalf) all Taxes due and payable by it, (B) duly and timely withheld all Taxes and other amounts required by Law to be withheld by it and has duly and timely remitted to the appropriate Governmental Entity such Taxes and other amounts required by Law to be remitted by it, and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and services, harmonized sales and provincial or territorial sales taxes, required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Law to be remitted by it.
(iii) The charges, accruals and reserves for all Tax periods Taxes reflected on the Goldcorp Financial Statements (whether or portions thereof not due and whether or not shown on such Returns, (iiiany Tax Return but excluding any provision for deferred income taxes) established on the books of account of the Stewardship Entitiesare, in accordance with GAAP and consistent with past practicesthe opinion of Goldcorp, adequate reserves for under Canadian GAAP to cover Taxes with respect to Goldcorp, the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating Goldcorp Material Subsidiaries and, to the withholding knowledge of Taxes and Goldcorp, the payment thereof Goldcorp Significant Interest Companies (to the extent that such entitles are consolidated in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partythe Goldcorp Financial Statements) accruing through the date hereof.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(civ) There are no Encumbrances for Taxes upon any assets proceedings, investigations, audits, assessments, reassessments or claims now pending or to the knowledge of Goldcorp, threatened against any of Goldcorp, the Stewardship EntitiesGoldcorp Material Subsidiaries or, except Permitted Encumbrancesto the knowledge of Goldcorp, the Goldcorp Significant Interest Companies that propose to assess Taxes in addition to those reported in the Tax Returns.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(ev) No deficiency for waiver of any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit given or other administrative proceeding or court proceeding requested with regard respect to any Taxes or any Return of Goldcorp, any of the Stewardship Entities for any Tax year subsequent Goldcorp Material Subsidiaries or, to the year ended December 31knowledge of Goldcorp, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other LawGoldcorp Significant Interest Companies.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Amending Agreement (Glamis Gold LTD), Arrangement Agreement (Glamis Gold LTD)
Tax Matters. (a) Each of the Stewardship Entities (i) has FBR Asset and its subsidiaries have timely filed or has had will timely file all material Tax Returns required to be filed on its behalf (by them with any taxing authority, taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed and all such Tax Returns are complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalf) all Taxes that are shown as due on such Tax Returns have been or, prior to the Closing Date, will be timely paid and all other material Taxes which are due and payable have been or, prior to the Closing Date, will be timely paid, (iii) no deficiency for all Tax periods Taxes has been asserted or portions thereof assessed in writing by a taxing authority against FBR Asset or any of its subsidiaries for which there are not reserves in accordance with GAAP, (iv) FBR Asset and its subsidiaries have provided reserves in accordance with GAAP in their financial statements for any Taxes that have not been paid, whether or not shown as being due on such any Tax Returns, (iiiv) established on the books of account of the Stewardship Entities, in accordance with GAAP FBR Asset and consistent with past practices, adequate reserves for the payment of its subsidiaries have neither extended nor waived any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to Taxes and have not otherwise agreed to any extension of time with respect to a Tax assessment or deficiency, (vi) neither FBR Asset nor any of its subsidiaries is a party to any tax sharing agreement or arrangement other than with each other, (vii) there are not pending or threatened in writing any audits, examinations, investigations, litigation, or other proceedings in respect of Taxes of FBR Asset or any Return is outstandingof its subsidiaries, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent and (viii) to the year ended December 31knowledge of FBR Asset, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any no liens for Taxes or Returns. There are no outstanding subpoenas or requests for information exist with respect to any of the Returns assets or properties of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code FBR Asset or any similar provision under any other Lawits subsidiaries, except for liens for Taxes that are not yet due or payable or that are being contested in good faith.
(fb) To Since the Knowledge beginning of Stewardship, no additional Taxes will be assessed against any of its initial REIT taxable year commencing on the Stewardship Entities for any Tax period or portion thereof ending on or prior to day before the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions closing date for the years initial private placement of its shares of common stock and ended December 31, 20151997, 2016 and 2017 have FBR Asset has (i) been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
as a real estate investment trust (ia "REIT") Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G 856 of the Code and has satisfied all requirements to qualify as a REIT for all such years, (ii) not been described in Section 856(c)(6) of the Code, (iii) not incurred any material liability for Tax arising from "prohibited transactions" within the meaning of Section 857(b)(6) of the Code, and (iv) not been subject to excise tax under Section 4981 of the consummation Code. FBR Asset does not have any property that is subject to the rules of Section 1374 of the Code and the Treasury Regulations thereunder pursuant to Treasury Regulation Sections 1.337(d)-5T, -6T or -7T.
(c) Neither FBR Asset nor any of its subsidiaries has made or is obligated to make any payment (including any transfer of property or provision of any benefit) in connection with the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities which, alone or aggregated with any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingpayment, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(li) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation an excess parachute payment within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii280(G) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) , or (ii) has any Liability non-deductible remuneration for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning purposes of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(ud) Except as set forth on Schedule 4.20(u)As used in this Agreement, none of the Stewardship Entities has been a member "Taxes" shall mean any and all taxes, levies, duties, tariffs, imposts, and other charges of any partnership or joint venture or the holder of a beneficial interest in kind (together with any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.all interest,
Appears in 2 contracts
Samples: Merger Agreement (Friedman Billings Ramsey Group Inc), Merger Agreement (FBR Asset Investment Corp/Va)
Tax Matters. (a) Each Except as set forth in Item 2.10 of the Stewardship Entities Powertel Letter or as would not have a Material Adverse Effect on Powertel: (i) has Powertel and each of the Powertel Subsidiaries have timely filed or has had timely filed on its behalf (after taking into account any extension of time within which extensions to file) each Return all Tax Returns required to be filed by them either on a separate or sent combined or consolidated basis; (ii) all such Tax Returns are correct in all respects and accurately disclose in all respects all Taxes required to be paid for the periods covered thereby; (iii) Powertel and the Powertel Subsidiaries have paid or caused to be paid all Taxes shown as due on such Tax Returns and all Taxes for which no Tax Return was required to be filed, and the financial statements contained in the Powertel SEC Documents reflect an adequate reserve as determined in accordance with generally accepted accounting principles for all material Taxes payable by it Powertel and the Powertel Subsidiaries and not yet due (other than a reserve for deferred Taxes established to reflect timing differences between book and Tax treatment) for all taxable periods and portions thereof accrued through the date of such financial statements; (iv) none of Powertel or any Taxing Authority Powertel Subsidiary has waived in writing any statute of limitations in respect of Taxes; (v) there is no action, suit, investigation, audit, claim or assessment that has been formally commenced or proposed to Powertel in writing with respect to Taxes of Powertel or any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability the Powertel Subsidiaries where an adverse determination is reasonably likely; (vi) there are no Liens for Taxes upon the assets of the relevant Stewardship Entity, and Powertel or any Affiliate of such entity, covered by such Return, Powertel Subsidiary except for Liens relating to current Taxes not yet due; (ii) timely and properly paid (or had paid on its behalfvii) all Taxes due which Powertel or any Powertel Subsidiary is required by law to withhold or to collect for payment have been duly withheld and payable for all Tax periods collected, and have been paid or portions thereof whether or not shown on such Returns, (iii) established accrued on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of Powertel or such Powertel Subsidiary; (viii) neither Powertel nor any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) Powertel Subsidiary has been a member of an affiliated any group of corporations filing Tax Returns on a consolidated Return (consolidated, combined, unitary or similar basis other than a each such group the common parent of which was Stewardshipit is currently a member; (ix) or (ii) has any Liability for the Taxes no deduction of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (amount that would otherwise be deductible by Powertel or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” Powertel Subsidiaries with respect to taxable periods ending on or a “controlled corporation” (within before the meaning of Effective Time could be disallowed under Section 355(a)(1)(A162(m) of the Code; (x) neither Powertel nor any of the Powertel Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of shares stock qualifying for tax-free treatment under Section 355 of the Code that (ia) took place during in the two (2) year period ending on years prior to the date of this Agreement or (iib) in a distribution which could otherwise constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
Reorganization; (pxi) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by neither Powertel nor any of the Stewardship Entities relating to Taxes Powertel Subsidiaries is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (a "United States real property holding corporation" within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B897(c)(2) of the Code.
; (txii) There is no Contractnone of Powertel, plan VoiceStream or arrangementany of their Subsidiaries will be obligated to make a payment, including this Agreementin connection with the transactions contemplated hereunder or otherwise, pursuant to which any current employee or former employee of, or individual providing services to, Powertel or any Powertel Subsidiary that would be a "parachute payment" to a "disqualified individual" as those terms are defined in Section 280G of the Code without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future; and (xiii) none of Powertel, VoiceStream or any of their Subsidiaries will be obligated to pay any excise taxes or similar taxes imposed on any employee or former employee of, or individual providing services to, Powertel or any Powertel Subsidiary under Section 4999 of the Stewardship Entities would be entitled to receive Code or any payment similar provisions as a result of the consummation of the transactions contemplated by this Agreement that would not be deductible under Section 404 hereby, either alone or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) connection with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codeevent.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Powertel Inc /De/), Agreement and Plan of Reorganization (Voicestream Wireless Corp /De)
Tax Matters. (a) Each of i. Except as set forth on the Stewardship Entities (i) has timely attached "TAXES SCHEDULE": the Company, each Subsidiary and each Affiliated Group have filed or has had timely filed on its behalf (taking into account any extension of time within all Tax Returns which to file) each Return they are required to be filed or sent by it file under applicable laws and regulations except to any Taxing Authority in respect of any Taxes, each of which was correctly completed the extent that the failure to file would not have a Material Adverse Effect; all such Tax Returns are complete and correct in all material respects and accurately reflected any have been prepared in compliance with all applicable laws and regulations in all material Liability for Taxes of respects; the relevant Stewardship EntityCompany, each Subsidiary and any Affiliate of such entity, covered by such Return, (ii) timely and properly to the Company`s knowledge each Affiliated Group in all material respects have paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owing by them (whether or not such Taxes are required to be shown on such Returns, (iiia Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due have withheld and payable and (iv) complied in all material respects with all applicable Laws relating paid over to the withholding of appropriate taxing authority all Taxes and the payment thereof in connection with any which they are required to withhold from amounts paid or owing to any employee, independent contractorstockholder, creditor, shareholder creditor or other third party.
(b) Each of ; neither the Stewardship Entities Company, any Subsidiary nor any Affiliated Group has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid waived any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any material Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreed to any Taxes or any Return extension of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information time with respect to any material Tax assessment or deficiency; the accrual for Taxes on the Latest Balance Sheet would be adequate to pay all Tax liabilities of the Company and its Subsidiaries if their current tax year were treated as ending on the date of the Latest Balance Sheet (excluding any amount recorded which is attributable solely to timing differences between book and Tax income); since the date of the Latest Balance Sheet, the Company and its Subsidiaries have not incurred any material liability for Taxes other than in the ordinary course of business; the assessment of any additional Taxes for periods for which Tax Returns have been filed by the Company, each Subsidiary and each Affiliated Group is not expected to exceed the recorded liability therefor on the Latest Balance Sheet in any material respect (excluding any amount recorded which is attributable solely to timing differences between book and Tax income); the federal income Tax Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of StewardshipCompany and its Subsidiaries have been audited and closed for all tax years through 1998; no foreign, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, state or local and foreign income Returns filed tax audits or administrative or judicial proceedings are pending or being conducted with respect to the Stewardship Entities for taxable periods ended on Company, any Subsidiary or after December 31any Affiliated Group, 2015no information related to Tax matters has been requested by any foreign, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entitiesfederal, as filed with the Internal Revenue Service and all state or local taxing authority and no written notice indicating an intent to open an audit or other review has been received by the Company from any foreign, federal, state or local taxing authority; and to the Company's knowledge there are no material unresolved questions or claims concerning the Company's, any Subsidiary's or any Affiliated Group Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbialiability.
(h) To ii. Neither the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, Company nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(iits Subsidiaries has made an election under Section 341(f) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and . Neither the consummation Company nor any Subsidiary is liable for the Taxes of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other another Person that are is not deductible a Subsidiary in a material amount under (in whole or in parta) as a result of the application of Section 280G of the CodeTreas. Reg.
Section 1. 1502-6 (j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(llaw), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(mb) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, (c) by Contractcontract or indemnity or (d) otherwise. Neither the Company nor any Subsidiary is a party to any tax sharing agreement. The Company, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” each Subsidiary and each Affiliated Group have disclosed on their federal income Tax Returns any position taken for which substantial authority (within the meaning of IRC Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(26662(d)(2)(B)(i)) did not exist at the time the return was filed. Neither the Company nor any Subsidiary has made any payments, is obligated to make payments or is a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating party to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions an agreement that could give rise obligate it to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which make any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement payments that would not be deductible under IRC Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.280G.
Appears in 2 contracts
Samples: Series B Convertible Preferred Stock Purchase Agreement (Corechange Inc), Series B Convertible Preferred Stock Purchase Agreement (Corechange Inc)
Tax Matters. (a) Each Parent and each of the Stewardship Entities (i) has its Subsidiaries have prepared and timely filed or has had timely filed on its behalf (taking into account any valid extension of time within which to file) each Return all Tax Returns required to be filed by any of them and all such filed Tax Returns are true, correct and complete in all respects, except for such failures to prepare and timely file or sent by it failures to any Taxing Authority be true, correct and complete as would not reasonably be expected to be, individually or in respect of any Taxesthe aggregate, a material to Parent and its Subsidiaries, taken as a whole.
(b) Parent and each of its Subsidiaries have paid all Taxes that are required to be paid by any of them, except with respect to matters for which was correctly completed adequate reserves have been established on the face of the Parent Balance Sheet, and withheld (and timely paid over any withheld amounts to the appropriate Governmental Authority) all Taxes required to be withheld, except for such failures to pay, establish adequate reserves or withhold as would not reasonably be expected to have individually or in all material respects the aggregate, a Parent Material Adverse Effect.
(c) Neither Parent nor any of its Subsidiaries had any Liabilities for unpaid Taxes as of the Parent Balance Sheet Date that had not been accrued or reserved on the face of the Parent Balance Sheet, and accurately reflected neither Parent nor any of its Subsidiaries has incurred any material Liability for Taxes since the Parent Balance Sheet Date other than in the ordinary course of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and business consistent with past practicespractice, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating except to the withholding of Taxes and extent such Liabilities would not reasonably be expected to have, individually or in the payment thereof in connection with any amounts paid or owing to any employeeaggregate, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrancesa Parent Material Adverse Effect.
(d) None The U.S. consolidated federal income Tax Returns of Parent have been examined by the Internal Revenue Service (or the period for assessment of the Stewardship Entities Taxes in respect of which such Tax Returns were required to be filed has requested any extension of time within which to file any Return, which Return has not since been filed.
(eexpired) No deficiency for any Taxes has been proposed, asserted all periods ending on or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended before December 31, 20152009. Since January 1, nor is any such Tax audit 2008, (i) no claim has ever been made in writing, or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of StewardshipParent, is any such Tax audit other notice, by any Governmental Authority that Parent or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it its Subsidiaries is or may be subject to taxation by that jurisdictionin a jurisdiction in which it does not file Tax Returns, and (ii) neither Parent nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations on or extension of the period for the assessment or collection of any material Tax.
(ie) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities Parent is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codenot, and the consummation of the transactions contemplated by this Agreement will has not be been at any time since January 1, 2010, a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a “United States real property holding corporation corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(nf) There are no Liens for Taxes on any of the assets of Parent or any of its Subsidiaries other than Permitted Liens.
(g) None of the Stewardship Entities (i) Parent or any of its Subsidiaries has been a member “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date hereof that was purported or intended to be governed by Section 355 of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 Code (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, or otherwise.
(oh) Parent and its Subsidiaries are in compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction Contract or order with respect to Parent and each of its Subsidiaries, except where failure to be in compliance has not had and would not reasonably be expected to be, individually or in the aggregate, a material to Parent and its Subsidiaries, taken as a whole.
(i) None of the Stewardship Entities constitutes either Parent or any of its Subsidiaries has engaged in a “distributing corporationlisted transaction,” or within the meaning of Treas. Reg. Section 1.6011-4(b)(2).
(j) Except as would not reasonably be expected to have a Parent Material Adverse Effect, each Parent Employee Plan which is a “controlled corporationnonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) has been administered in operational and documentary compliance with the requirements of Section 409A of the Code. Except as would not reasonably be expected to have a Parent Material Adverse Effect, no stock option or other right to acquire Parent Common Stock or other equity of Parent (i) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted, as determined by the Parent Board in good faith, (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights, or (iii) has been granted after December 31, 2004, with respect to any class of stock of Parent that is not “service recipient stock” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment applicable regulations under Section 355 409A). Neither Parent, nor any Subsidiary or ERISA Affiliate is a party to any Contract which would require the payment to any current or former employee, consultant or director of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a an amount necessary to “plangross-up” or “series of related transactions” (within the meaning of such individual for any penalty tax under Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) 409A of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Entropic Communications Inc), Merger Agreement (Maxlinear Inc)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 6.7, (i) has timely filed or has had timely filed on its behalf (taking into account any extension all Taxes relating to the Medical Business required to be paid by the Medical Group through the date hereof have been paid and all returns, declarations of time within which to file) each Return estimated Tax, Tax reports, information returns and statements required to be filed or sent by it the Medical Group in connection with the Medical Business prior to the date hereof (other than those for which extensions shall have been granted prior to the date hereof) relating to any Taxing Authority in Taxes with respect to any income, properties or operations of any Taxesthe Medical Group prior to the date hereof (collectively, each "Returns") have been duly filed; (ii) as of which was the time of filing, the Returns correctly completed reflected in all material respects and accurately reflected (and, as to any material Liability for Taxes Returns not filed as of the relevant Stewardship Entitydate hereof, will correctly reflect in all material respects) the facts regarding the income, business, assets, operations, activities and status of the Medical Business and any Affiliate of such entity, covered by such Return, other information required to be shown therein; (ii) timely and properly paid (or had paid on its behalfiii) all Taxes relating to the operations of the Medical Business that have been shown as due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established by the Medical Group on the Returns have been timely paid and filed or adequate provisions made to the books of account and records of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Medical Business; (iv) complied in connection with the Medical Business (x) the Medical Group has made provision on the Balance Sheet for all material respects Taxes payable by the Medical Group for any periods that end on or before the Balance Sheet Date for which no Returns have yet been filed and for any periods that begin on or before the Balance Sheet Date and end after the Balance Sheet Date to the extent such Taxes are attributable to the portion of any such period ending on the Balance Sheet Date and (y) provision has been made for all Taxes payable by the Medical Group for any periods that end on or before the date hereof for which no Returns have then been filed and for any periods that begin on or before the date hereof and end after such date to the extent such Taxes are attributable to the portion of any such period ending on such date; (v) no tax liens have been filed with all applicable Laws respect to any of the assets of the Medical Business, and there are no pending tax audits of any Returns relating to the withholding of Taxes Medical Business; and (vi) no deficiency or addition to Taxes, interest or penalties applicable to the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency Medical Group for any Taxes relating to the operation of the Medical Business has been proposed, asserted or assessed against in writing (or any member of any affiliated or combined group of which the Medical Group or any previous operator of the Medical Business was a member for which the Medical Group could be liable).
(b) The Medical Group is not a foreign person within the meaning of ss.1.1445-2(b) of the Regulations under Section 1445 of the Code.
(c) The Medical Group has provided the Management Company with true and complete copies of all Federal, state and foreign Returns of the Medical Group for the calendar years ending December 31, 1994 and 1995.
(d) For purposes of this Agreement, "Tax" means any of the Stewardship Entities that has not been resolved Taxes and paid in full. No waiver"Taxes" means, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes person or any Return is outstandingentity, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fi) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended taxes (including any tax on or after December 31based upon net income, 2015or gross income, indicates those Returns that have been audited and indicates those Returns that currently are the subject or income as specially defined, or earnings, or profits, or selected items of audit. True and complete copies of the Returns of each of the Stewardship Entitiesincome, as filed with the Internal Revenue Service earnings or profits) and all state Federal, state, local and foreign gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties or other Federal, state, local Tax jurisdictions and foreign taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority (domestic or foreign) on such person or entity and (ii) any liability for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G amount of the Code, and type described in the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible immediately preceding clause (in whole or in parti) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in being a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” `transferee' (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) 6901 of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5any other applicable law) of the Codeanother person or entity or a member of an affiliated or combined group.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Management Services Agreement (BMJ Medical Management Inc), Management Services Agreement (BMJ Medical Management Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) has CMS and its Subsidiaries have duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all material Tax Returns required to be filed or sent by it with respect to any Taxing Authority in respect of any all applicable Taxes, each of which was correctly completed and all such Tax Returns are true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, respects.
(ii) (A) CMS and its Subsidiaries have timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof payable, whether or not shown on such Returnsany Tax Return, (iiiB) CMS and its Subsidiaries have established on reserves in the books of account of financial statements in the Stewardship EntitiesCMS SEC Documents and in its internal financial statements (including, in accordance with GAAP and consistent with past practiceswithout limitation, adequate reserves financial statements immediately prior to the Effective Time) for Taxes which are sufficient for the payment of any all unpaid Taxes as of the dates thereof, whether or not then such Taxes are disputed or are yet due and payable and (iv) complied in all material respects payable, for or with all applicable Laws relating respect to the withholding of period, (C) CMS and its Subsidiaries have withheld and timely paid to the proper Governmental Authority or taxing authority all Taxes required to have been withheld and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractorconsultant, creditor, shareholder member or other third party.
, (bD) Each CMS and its Subsidiaries have furnished properly completed and valid exemption or other appropriate certificates for all transactions treated as exempt from sales, use, value added, ad valorem, transfer or other similar Taxes, (E) to the knowledge of the Stewardship Entities has made (or caused to be made on CMS, CMS and its behalf) all estimated Tax payments required to Subsidiaries have been made to avoid any underpayment penalties.
(c) There are no Encumbrances liability for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency payable for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard periods prior to any Taxes or any Return of any and including the Effective Time in excess of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or amounts actually paid prior to the Effective Time that will exceed or reserved for in the estimated reserves for such Taxes established by financial statements in the Stewardship Entities. To the Knowledge of StewardshipCMS SEC Documents and in its internal financial statements (including, there are no unresolved questionswithout limitations, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect financial statements immediately prior to the Stewardship Entities for taxable periods ended on or after December 31Effective Time), 2015, indicates those Returns that have and (F) no claim has been audited and indicates those Returns that currently are made within the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the past three years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes taxing authority in a any jurisdiction where it in which CMS and/or its Subsidiaries does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it CMS and/or its Subsidiaries is or may be subject to taxation by that jurisdiction.
(iiii) Except as set forth on Schedule 4.20(i)CMS and its Subsidiaries have furnished or will furnish prior to the Effective Time, none or otherwise made available to Customers true and correct copies of all Tax Returns and all written communications relating to any such Tax Returns or to any deficiency or claim proposed and/or asserted, irrespective of the Stewardship Entities outcome of such matter, but only to the extent such Tax Returns or items relate to tax years which are currently subject to an audit, investigation, examination or other proceeding, or with respect to which the applicable statute of limitations has not expired.
(A) All deficiencies asserted or assessments made as a result of any Tax audit, investigation, examination or other proceeding have been paid in full, (B) there are no current audits, investigations, examinations or other administrative or judicial proceeding with respect to any Taxes or Tax Returns of CMS and its Subsidiaries and neither CMS nor any of its Subsidiaries has received any written notice that any such audit, investigation, examination or other administrative or judicial proceeding is threatened or pending, and (C) there are no agreements, waivers or extensions of any statute of limitations currently in effect with respect to a Tax Return or Tax assessment or deficiency of CMS or its Subsidiaries.
(v) (A) Neither CMS nor any of its Subsidiaries is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior agreement relating to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnityallocation or payment of, or reimbursement agreement or arrangement indemnity for, Taxes (other than any customary Tax indemnification provisions in ordinary course commercial agreements between members of a group of corporations, entities or other arrangements that are not primarily related to TaxesPersons of which CMS is or was the common parent).
, and (mB) Neither Stewardship neither CMS nor Stewardship Bank any of its Subsidiaries has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has ever been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group of which CMS is or was the common parent of which was Stewardship) parent), nor any similar affiliated, consolidated, combined or (ii) unitary group for foreign, state or local Tax purposes, and neither CMS nor its Subsidiaries has any Liability liability for the Taxes of any other Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Regulation Section 1.1502-6 (or any corresponding or similar provision of Lawforeign, state or local Tax law), as a transferee or successor, by Contractcontract, or otherwise.
otherwise (o) None other than liability for the Taxes of corporations, entities or other Persons of which CMS is or was the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)common parent).
(qvi) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable (A) CMS and its Subsidiaries have disclosed on their Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported Returns all transactions positions taken therein that could reasonably be expected to give rise to an underpayment a substantial understatement of Tax (within the meaning of Section 6662 of the Code (or any similar provision under any state, local, or foreign tax Law), (B) to the knowledge of CMS, neither CMS nor any of its Subsidiaries have engaged in or are currently participating in any “reportable transactions” as defined in Section 6707A of the Code and Section 1.6011-4 of the income tax regulations promulgated under the Code, and (C) to the knowledge of CMS, CMS and its Subsidiaries are in compliance with, and their records contain all information and documents (including properly completed IRS Forms W-9) necessary to comply with, all applicable information reporting and tax withholding requirements under federal, state, and local tax Laws.
(A) Neither CMS nor any of its Subsidiaries has distributed stock of another person, or has had its stock distributed by another person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code, (B) neither CMS nor any of its Subsidiaries has entered into a written agreement with any Governmental Authority or taxing authority or is subject to an adjustment under Section 481(a) of the Code (or similar provision of state, local or foreign Law) that would have a material impact on the relevant Returns calculation of Taxes after the Effective Time, and (C) Neither CMS nor any of its Subsidiaries has been within the applicable period set forth in Section 897(c)(1)(A)(ii) of the Code, and shall not be as of the Effective Date, a manner “United States real property holding corporation” (as that term is defined under Section 897 of the Code).
(viii) There are no Liens for which there is substantial authorityTaxes (other than Taxes not yet due and payable) upon any of the assets of CMS or its Subsidiaries.
(ix) Within the last 3 years, neither CMS nor any of its Subsidiaries has (A) made, revoked or changed any material federal Tax election, (B) changed any Tax accounting period, (C) revoked or changed any Tax accounting method, (D) surrendered any right to claim a refund of Taxes, or adequately disclosed such transactions (E) settled or compromised any Tax liability.
(x) Neither CMS nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Effective Date as a result of any (A) change in accounting method for any taxable period ending on or prior to the Returns Effective Date, (B) “closing agreement,” as required that term is defined in accordance with Section 6662(d)(2)(B7121 of the Code (or any corresponding or similar provision of foreign, state or local Tax law) executed on or prior to the Effective Date, (C) installment sale or open transaction disposition made on or prior to the Effective Date; or (D) prepaid amount received on or before the Effective Date.
(xi) Except as Previously Disclosed, no payment or benefit paid or provided, or to be paid or provided, to current or former employees, directors or other service providers of or to CMS, any of its Subsidiaries, (including pursuant to this Agreement) will fail to be deductible for federal income tax purposes under Section 162(m) or Section 280G of the Code.
(txii) There is no ContractNo closing agreements, plan private letter rulings, technical advice memoranda or arrangementsimilar agreements or rulings relating to Taxes have been entered into or issued by a Governmental Authority or taxing authority with or in respect of CMS or its Subsidiaries.
(xiii) To the knowledge of CMS, including this Agreement, pursuant to which any current or former employee of neither CMS nor any of the Stewardship Entities would be entitled its Subsidiaries (A) is a partner for Tax purposes with respect to receive any payment joint venture, partnership, or other arrangement or contract which is treated as a result partnership for Tax purposes, (B) owns a single member limited liability company or other entity that is treated as a disregarded entity, (C) is a shareholder of a “controlled foreign corporation” as defined in Section 957 of the transactions contemplated by this Agreement that would not be deductible under Code, (D) is a “personal holding company” as defined in Section 404 542 of the Code, or 162(m(E) is a shareholder in a “passive foreign investment company” within the meaning of Section 1297 of the Code.
(uxiv) Except as set forth on Schedule 4.20(u)To the knowledge of CMS, none of the Stewardship Entities has been a member assets of CMS or any partnership of its Subsidiaries directly or joint venture or indirectly, secures any debt the holder interest on which is tax exempt under Section 103(a) of a beneficial interest in the Code. Neither CMS nor any trust for any period of its Subsidiaries presently hold assets for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person an election under the provisions of Section 168(f)(8108(b)(5) of the Code (as in effect prior to amendment by was made. None of the Tax Reform Act assets of 1986), (ii) CMS or any of its Subsidiaries is “tax-exempt use property” within the meaning of Section 168(h) of the Code Code.
(xv) As of the date hereof, neither CMS nor any of its Subsidiaries has any reason to believe that any conditions exist that might prevent or (iii) “tax-exempt bond financed property” impede the Parent Merger from qualifying as a reorganization within the meaning of Section 168(g)(5368(a) of the Code.
(wxvi) None of If CMS Bank (or its predecessor) is, or has been in the Indebtedness of any Stewardship Entity constitutes (i) past, a “corporate acquisition indebtednessdisqualified person” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under The Community Mutual Charitable Foundation (the “Foundation”), there have been no acts of “self-dealing” between the Foundation and CMS Bank since the time the Foundation was first incorporated through the Effective Time. For purposes of this representation, the term “disqualified person” shall have the meaning set forth in Section 279 4946 of the Code or (ii) an “applicable high yield discount obligation” under and the term self-dealing shall have meaning set forth in Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision 4941 of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Customers Bancorp, Inc.), Merger Agreement (CMS Bancorp, Inc.)
Tax Matters. (a) Each of Subject to any requirement to file arising from, or in connection with, the Stewardship Entities transactions contemplated in this Agreement, the Corporation and the Holding Companies have:
(i) has timely prepared and filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return with the appropriate governmental authorities by the required filing date all Tax Returns required to be filed or sent by it under all applicable laws or regulations, which Tax Returns, were prepared in conformity with such applicable laws and regulations and properly reflect, and do not understate (including that all deductions taken and to be taken are reasonable and fully deductible for tax purposes in the manner claimed or to be claimed by the Corporation) the taxable income and the liability for Taxes of such corporation in the relevant taxation year;
(ii) duly and timely paid all Taxes as they have become due and payable; and
(iii) made sufficient provision in the Financial Statements for all accrued but unpaid Taxes, if any, whether or not disputed, for all relevant periods. Income tax assessments have been issued to the Corporations covering all past periods up to and including the fiscal year ended June 30, 2000, and such assessments, if any Taxing Authority amounts were owing in respect thereof, have been paid in full. Income tax assessments have been issued to 591360 covering all past periods up to and including the fiscal year ended June 30, 2000, and to 123557 covering all past periods up to and including the fiscal year ended October 31, 1995, and such assessments, if any amounts were owing in respect thereof, have been paid in full. There are no actions, suits, tax audits or other proceedings or investigations or claims in progress, pending or threatened in writing against the Corporation or the Holding Companies in respect of any Taxes and, in particular, there are no currently outstanding reassessments or written inquiries which have been issued or raised by any governmental authority relating to Taxes. The Corporation and the Holding Companies are not aware of any contingent liabilities for Taxes or any reasonable grounds for an assessment or reassessment of any Tax Return filed by the Corporation, and has not received any indication from any taxing authorities that an assessment or reassessment is proposed in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes regardless of the relevant Stewardship Entitymerits. The Corporation and the Holding Companies have not executed or filed with any taxing authority any agreement extending the period for assessment, reassessment or collection of Taxes, or any waiver or agreement regarding statutes of limitations relating to Taxes. All Taxes which are required to be withheld or collected by the Corporation or the Holding Companies from payments made to its present and former employees, officers and directors, and any Affiliate to all persons who are not residents of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable Canada for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account purposes of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Income Tax payments required to Act have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted duly withheld or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, norcollected and, to the Knowledge extent required, have been duly remitted to the proper taxing authorities. The Corporation and the Holding Companies have properly withheld all Canada Pension Plan contributions, Employment Insurance premiums, and other Taxes payable by it in respect of Stewardshipits employees and has remitted, or will remit such amounts to the proper taxing authorities within the time required by the applicable legislation if such time is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established Closing Date. Copies of all Tax Returns and all schedules and other supporting documents thereto filed by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Corporation with all taxing authorities for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service last three (3) completed fiscal years and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 communications relating thereto have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior delivered to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax LawBuyer.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Share Purchase Agreement (Chell Group Corp), Share Purchase Agreement (Chell Group Corp)
Tax Matters. (a) Each Except as set forth in Section 5.15(a) of the Stewardship Entities Disclosure Schedule, (i) has all Tax Returns with respect to each of the Purchased Assets and the Business have been duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within with the appropriate Taxing Authority in all jurisdictions in which to file) each Return 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 are true, complete and correct in all material respects; and (ii) all Taxes payable with respect to each of the Purchased Assets and the Business have been fully and timely paid.
(b) All deficiencies asserted or sent assessments made as a result of any examinations by it any Taxing Authority of the Tax Returns related to each of the Purchased Assets and the Business have been fully paid, and there are no other audits or investigations by any Taxing Authority in respect of progress, nor has any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and Seller (or any Affiliate thereof) received any notice from any Taxing Authority that it intends to conduct such an audit or investigation related to the Purchased Assets or the Business.
(c) Sellers have made available complete copies of such entity, covered by such Return, material Tax Returns relating to the Purchased Assets or the Business relating to taxable periods that ended after 2020.
(iid) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) Sellers have complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes with respect to each of the Purchased Assets and the payment thereof in connection with any Business and have duly and timely withheld and paid over to the appropriate Taxing Authorities all such amounts required to be so withheld and paid or owing to any employee, independent contractor, creditor, shareholder or other third partyover under all applicable Laws.
(be) Each of No claim has been made by a Taxing Authority in a jurisdiction in which Sellers do not currently file a particular Tax Return or pay a particular Tax with respect to the Stewardship Entities has made Purchased Assets or the Business such that Sellers (or caused to an Affiliate thereof) are or may be made on its behalf(i) all estimated Tax payments required to have been made file such particular Tax Return by such jurisdiction or (ii) subject to avoid any underpayment penaltiestaxation by such jurisdiction with respect to such particular Tax.
(cf) There are no Encumbrances for Taxes upon any assets of any Except as set forth in Section 5.15(f) of the Stewardship EntitiesDisclosure Schedule, except Permitted Encumbrances.
(d) None no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes with respect to each of the Stewardship Entities Purchased Assets and the Business (including, but not limited to, any applicable statute of limitation) or the period for filing any Tax Return with respect to each of the Purchased Assets and the Business, has requested been executed or filed with any Taxing Authority. No request for any extension of time within which to file any Return, which Tax Return has not since been filedmade with respect to the Purchased Assets or the Business.
(eg) Except as set forth in Section 5.15(g) of the Disclosure Schedule, there are no Liens for Taxes upon the Purchased Assets, except for Liens arising as a matter of Law relating to current Taxes not yet due.
(h) No deficiency Seller is a foreign person within the meaning of Section 1445 of the Code.
(i) None of the Purchased Assets is an interest (other than indebtedness within the meaning of Section 163 of the Code) in an entity taxable as a corporation, partnership, trust or real estate mortgage investment conduit for any Taxes federal income Tax purposes.
(j) No issue has been proposedraised by written inquiry of any Taxing Authority, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiverwhich, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute same principles, would reasonably be expected to affect the Tax treatment of limitations the Purchased Assets or the Business in any taxable period (or portion thereof) ending after the Closing Date.
(k) To the Knowledge of Seller, no power of attorney with respect to any Taxes Tax matter is currently in force with respect to the Purchased Assets or the Business that would, in any manner, bind, obligate, or restrict Purchaser.
(l) No Seller (or any Return is outstandingAffiliate thereof) has executed or entered into any agreement with, nor is or obtained any request consents or clearances from, any Taxing Authority, or has been subject to any ruling guidance specific to any Seller (or Affiliate thereof), that would be binding on Purchaser for any such waiver taxable period (or consent pending. Except as set forth on Schedule 4.20(e), there portion thereof) ending after the Closing Date.
(m) No Seller has been no Tax audit or other administrative proceeding or court proceeding with regard a party to any Taxes “listed transaction” within the meaning of Section 6707A of the Code and Treasury Regulations Section 1.6011-4(b)(2) (or any Return of any of the Stewardship Entities for any corresponding or comparable state, local or non-U.S. Tax year subsequent to the year ended December 31, 2015, nor is any Law) and no such Tax audit or other proceeding pending, nor “listed transaction” has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information undertaken with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other LawPurchased Assets.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) Purchaser:
(A) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(B) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, Purchaser and each of which was correctly Purchaser Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.respects; and
(bC) Each of the Stewardship Entities has made (not requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eii) No deficiency Purchaser has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Purchaser through the date hereof for the periods ending after December 31, 2004.
(iii) Purchaser:
(A) since January 1, 2005, Purchaser has not been notified by the IRS or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Purchaser or any Purchaser Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Purchaser or any Purchaser Tax Affiliate (for years that it was a Purchaser Tax Affiliate); no Tax liens have been filed against Purchaser or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Purchaser or any Return is outstanding, nor is any request Purchaser Tax Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was a Purchaser Tax Affiliate), there ;
(B) full and adequate accrual has been no Tax audit or other administrative proceeding or court proceeding with regard to any made (i) on the Purchaser Balance Sheet, and the books and records of Purchaser for all income Taxes or any Return of any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Purchaser for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Purchaser Balance Sheet Date, and (ii) on the estimated reserves books and records of Purchaser and for such all Taxes established payable by Purchaser for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Purchaser Balance Sheet Date;
(C) Purchaser has not incurred any liability for Taxes from and after the Purchaser Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
(D) Purchaser has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code;
(E) Purchaser has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
(F) Purchaser has no liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Purchaser has been bound have been terminated;
(G) Purchaser has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
(1) shall be non-deductible under, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Stewardship Entities.Code (or any corresponding provision of state local or foreign income Tax Law); or
(g2) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code;
(H) Purchaser has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.accounting methods of Purchaser;
(hI) To no claim has been made within the Knowledge of Stewardship, none of the Stewardship Entities has last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Purchaser does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Purchaser is or may be subject to taxation by that jurisdiction.;
(iJ) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement Share Exchange will not be trigger the realization or recognition of intercompany gain or income to Purchaser under the Federal consolidated return regulations with respect to Federal, state or local Taxes; and
(K) Purchaser is not currently, nor has it been at any time during the previous five years, a factor causing payments to be made by any of “U.S. real property holding corporation” and, therefore, the Stewardship Entities or any other Person that Purchaser Common Stock is not “U.S. real property interests,” as such terms are not deductible (defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Share Exchange Agreement (He Ying), Share Exchange Agreement (Deer Consumer Products, Inc.)
Tax Matters. Except as described in Schedule 4.11 hereto:
(a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return All federal, state and local tax returns required to be filed by or sent by it on behalf of Emclaire and each Emclaire Subsidiary have been timely filed or requests for extensions have been timely filed, granted, and have not expired for periods ended on or before the date of this Reorganization Agreement, and all returns filed are, and the information contained therein is, complete and accurate. All tax obligations reflected in such returns have been paid. As of the date of this Reorganization Agreement, there is no audit examination, deficiency, or refund litigation or matter in controversy with respect to any Taxing Authority taxes that might reasonably be expected to result in respect of any Taxesa determination materially adverse to Emclaire and Emclaire Subsidiaries, each of which was correctly completed taken as a whole, except as fully reserved for in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship EntityEmclaire Financial Statements. All taxes, interest, additions, and any Affiliate of such entity, covered by such Return, (ii) timely penalties due with respect to completed and properly paid (settled examinations or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.concluded litigation have been paid;
(b) Each Neither Emclaire nor any Emclaire Subsidiary has executed an extension or waiver of any statute of limitations on the Stewardship Entities has made (assessment or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid collection of any underpayment penalties.tax due that is currently in effect;
(c) There are no Encumbrances Adequate provision for Taxes upon any assets of any of federal, state or local taxes due or to become due for Emclaire and all Emclaire Subsidiaries for all periods through and including December 31, 1997, has been made and is reflected on the Stewardship EntitiesDecember 31, except Permitted Encumbrances.1997 financial statements included in the Emclaire Financial Statements, and have been and will continue to be made with respect to periods ending after December 31, 1997;
(d) None Deferred taxes of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since Emclaire and each Emclaire Subsidiary have been filed.and will be provided for in accordance with GAAP; and
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge best knowledge of StewardshipEmclaire, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with neither the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has nor any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreementsother taxing authority is now asserting or threatening to assert against Emclaire or any Emclaire Subsidiary any deficiency or claim for additional taxes, private letter rulings or similar agreements interest thereon or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Timepenalties in connection therewith. All material income, payroll, withholding, property, excise, sales, use, franchise and transfer taxes, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l)all other taxes, none of the Stewardship Entities is a party to any Tax allocationcharges, sharingfees, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements levies or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law)assessments, as a transferee or successor, imposed upon Emclaire by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted or by any state, municipality, subdivision or instrumentality of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial United States or by any other taxing authority, including all interest, penalties or adequately disclosed such transactions on additions attributable thereto, which are due and payable by Emclaire or any Emclaire Subsidiary, either have been paid in full or have been properly accrued and reflected in the Returns as required in accordance with Section 6662(d)(2)(B) of the CodeEmclaire Financial Statements.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Peoples Savings Financial Corp /Pa/), Agreement and Plan of Reorganization (Emclaire Financial Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) Envoy has timely filed or has had timely all federal, and all Material state, local, foreign and provincial tax returns, declarations, statements, reports, schedules, bonus and information returns and any amendments to any of the preceding ("Tax Returns") required to have been filed on its behalf (taking into account any extension of time within which or prior to file) each Return required to be filed the date hereof, or sent by it to any Taxing Authority in respect of any Taxesappropriate extensions therefor have been properly obtained, each of which was correctly completed and such Tax Returns are in all material Material respects true, correct and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, complete; (ii) all Taxes shown to be due on such Tax Returns either (x) have been timely paid or (y) extensions for payment have been properly obtained or such Taxes are being timely and properly paid (or had paid contested and, in either case, adequate reserves pursuant to GAAP have been established on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, Envoy's consolidated financial statements with respect thereto; (iii) established on the books Envoy and each of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) its Subsidiaries have complied in all material Material respects with all applicable Laws rules and regulations relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
Taxes; (biv) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of neither Envoy nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries has requested waived any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with in respect to any of its Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return Returns; (v) all Tax Returns of any of the Stewardship Entities for any Tax year subsequent to the Envoy and its Subsidiaries covering periods through Envoy's fiscal year ended December 31, 20151994 relating to federal income Taxes have been examined by the Internal Revenue Service ("IRS"), nor is and Section 5.8 of the Envoy Disclosure Letter sets forth all pending audits, examinations or claims by any taxing authority of any Tax Returns; (vi) except as have been advanced in pending audits or examinations listed in Section 5.8 of the Envoy Disclosure Letter, no claims that have been communicated in writing to Envoy by a taxing authority in connection with the examination of any federal or Material state Tax Returns of Envoy and its Subsidiaries are currently pending; (vii) all deficiencies asserted or assessments made as a result of any examination of such Tax audit Returns by any taxing authority have been paid in full or other proceeding pendingare being timely and properly contested and proper accruals pursuant to GAAP have been established on Envoy's consolidated financial statements with respect thereto; (viii) except for the potential liability for Taxes of the affiliated groups listed in Section 5.8 of the Envoy Disclosure Letter, neither Envoy nor has there been any notice to any of the Stewardship Entities by its Subsidiaries has any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
Envoy and its Subsidiaries (m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Banka) under Treasury Regulations Section 1.1502-6 (or any similar provision of applicable Law), (b) as a transferee or successor, or (c) by Contract, virtue of any express or implied agreement or otherwise.
; (oix) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by neither Envoy nor any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities its Subsidiaries has been a member of any partnership affiliated group within the meaning of Section 1504(a) of the Internal Revenue Code other than (a) the affiliated group of which Envoy is the common parent corporation and (b) the affiliated group of which Quintiles is the common parent corporation; (x) none of the property owned or joint venture used by Envoy or the holder of its Subsidiaries is subject to a beneficial interest tax benefit transfer lease executed in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of accordance with Section 168(f)(8) of the Internal Revenue Code (of 1954, as in effect prior to amendment amended by the Tax Reform Economic Recovery Act of 1986), 1981; (iixi) “tax-none of the property owned by Envoy or its Subsidiaries is "tax exempt use property” " within the meaning of Section 168(h) of the Internal Revenue Code; (xii) none of Envoy or its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement that under any circumstances could obligate any of Envoy or its Subsidiaries to make any payments that will not be deductible under either Section 162(m) or Section 280G of the Internal Revenue Code (or cause Envoy or any of its Subsidiaries to incur a payment to reimburse a person for a tax imposed under Internal Revenue Code Section 4999); (iiixiii) “tax-exempt bond financed property” except for the Tax Sharing Agreement between Envoy and Quintiles, a copy of which is attached to Section 5.8 of the Envoy Disclosure Letter, none of Envoy or its Subsidiaries is a party to any Tax allocation agreement, any Tax sharing agreement, or any Tax indemnity agreement; and (xiv) Envoy has no reason to believe that any conditions exist that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 168(g)(5368(a) of the Internal Revenue Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Quintiles Transnational Corp), Merger Agreement (Healtheon Webmd Corp)
Tax Matters. (a) Each The Company and each of the Stewardship Entities (i) has its Subsidiaries have prepared and timely filed or has had timely filed on its behalf (taking into account any valid extension of time within which to file) each Return all material Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesthem and all such filed Tax Returns are true, each of which was correctly completed correct and complete in all material respects respects, except for such failures to prepare and accurately reflected timely file or failures to be true, correct and complete as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
(b) The Company and each of its Subsidiaries have paid all Taxes that are required to be paid by any of them, except with respect to matters for which adequate reserves have been established on the face of the Company Balance Sheet, and withheld (and timely paid over any withheld amounts to the appropriate Governmental Authority) all Taxes required to be withheld, except for such failures to pay, establish adequate reserves or withhold as would not reasonably be expected to be individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
(c) Neither the Company nor any of its Subsidiaries had any Liabilities for material unpaid Taxes as of the Company Balance Sheet Date that had not been accrued or reserved on the Company Balance Sheet in accordance with GAAP, and neither the Company nor any of its Subsidiaries has incurred any material Liability for Taxes since the Company Balance Sheet Date other than in the ordinary course of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and business consistent with past practicespractice, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied except, in all material respects with all applicable Laws relating each case, to the withholding of Taxes extent such Liabilities would not be reasonably be expected to be, individually or in the aggregate, material to the Company and the payment thereof in connection with any amounts paid or owing to any employeeits Subsidiaries, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrancestaken as a whole.
(d) None The U.S. consolidated federal income Tax Returns of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since Company have been filed.
examined by the Internal Revenue Service (e) No deficiency or the period for any Taxes has been proposed, asserted or assessed against any assessment of the Stewardship Entities that Taxes in respect of which such Tax Returns were required to be filed has not been resolved and paid in full. No waiver, extension expired) for all periods ending on or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended before December 31, 20152009. Since January 1, nor is any such Tax audit 2008, (i) no claim has been made in writing, or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardshipthe Company, is any such Tax audit other notice, by any Governmental Authority that the Company or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it its Subsidiaries is or may be subject to taxation by that jurisdictionin a jurisdiction in which it does not file Tax Returns and (ii) neither the Company nor any of its Subsidiaries has executed any outstanding waiver of any statute of limitations on or extension of the period for the assessment or collection of any material Tax.
(ie) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities The Company is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codenot, and the consummation of the transactions contemplated by this Agreement will has not be been at any time since January 1, 2010, a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a “United States real property holding corporation corporation” within the meaning of Section 897(c)(2) of the Code Code.
(f) There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.
(g) None of the Company or any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the applicable two-year period specified ending on the date hereof that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or foreign Law).
(h) The Company and its Subsidiaries are in compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction Contract or order with respect to the Company and each of its Subsidiaries, except where the failure to be in compliance has not had and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
(i) None of the Company or any of its Subsidiaries has engaged in a “listed transaction,” within the meaning of Treas. Reg. Section 1.6011-4(b)(2).
(j) Each Company Employee Plan which is a “nonqualified deferred compensation plan” (as such term is defined in Section 897(c)(1)(A)(ii409A(d)(1) of the Code) has been administered in operational and documentary compliance in all material respects with the requirements of Section 409A of the Code. No stock option or other right to acquire Company Common Stock or other equity of the Company (i) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted, as determined by the Company Board in good faith, (ii) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights, or (iii) has been granted after December 31, 2004, with respect to any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A). Neither the Company, nor any Subsidiary or ERISA Affiliate is a party to any Contract which would require the payment to any current or former employee, consultant or director of an amount necessary to “gross-up” such individual for any penalty tax under Section 409A of the Code.
(nk) None Neither the Company nor any of the Stewardship Entities its Subsidiaries (i) has been a member of an affiliated group filing a consolidated Return (incurred, or has any potential to incur, any material liability pursuant to any Tax sharing, Tax allocation or Tax indemnification Contract, other than a group any such Contract entered into in the common parent ordinary course of business the primary purpose of which was Stewardship) is unrelated to Taxes; or (ii) has any Liability material liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under the Company and its Subsidiaries pursuant to Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of Law)state, local or non-United States law) as a transferee or successor, or otherwise by Contract, or otherwiseoperation of Law.
(ol) None of the Stewardship Entities constitutes either Company or any of its Subsidiaries has taken any action or has Knowledge of any facts or circumstances that would reasonably be expected to cause the Merger to fail to qualify as a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use propertyreorganization” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5368(a) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Entropic Communications Inc), Merger Agreement (Maxlinear Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed (A) All Tax Returns that were or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return are required to be filed by or sent by it with respect to any Taxing Authority in respect of any TaxesLimestone and its Subsidiaries have been duly and timely filed, each of which was correctly completed or an appropriate extension has been granted, and all such Tax Returns are true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalfB) all Taxes due and payable for all Tax periods or portions thereof (whether or not required to be shown on such Returns, (iii) established to be due on the books Tax Returns referred to in clause (i)(A) of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (ivthis Section 5.01(p)) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent and (C) no unexpired waivers of statutes of limitation have been given by any of the Stewardship Entities regarding the application of the statute of limitations or requested with respect to any Taxes of Limestone or its Subsidiaries. Limestone has made available to Peoples true and correct copies of the United States federal income Tax Returns filed by Limestone and its Subsidiaries for each of the three most recent fiscal years. Neither Limestone nor any Return is outstanding, nor is of its Subsidiaries has any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding liability with regard respect to any Taxes or any Return of any in excess of the Stewardship Entities for any Tax year subsequent to amounts accrued with respect thereto that are reflected in the year ended financial statements in Limestone SEC Reports or that have arisen in the ordinary and usual course of business since December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of 2018. The accruals and reserves for Taxes reflected in financial statements in Limestone SEC Reports are adequate for the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returnsperiods covered. There are no outstanding subpoenas Liens for Taxes upon the assets of Limestone or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement its Subsidiaries other than Liens for current Taxes not yet due and payable.
(ii) No Tax is required to be withheld pursuant to Section 7121 1445 of the Code or any similar provision under any other Lawas a result of the transactions contemplated by this Agreement.
(fiii) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period Limestone and its Subsidiaries have withheld or portion thereof ending on or prior collected and paid over to the Effective Time that will exceed the estimated reserves appropriate Governmental Authorities, or are properly holding for such payment, all Taxes established required by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims law to be withheld or disputes concerning the Liability for Taxes of any of the Stewardship Entitiescollected.
(giv) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have No claim has ever been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Authority in a jurisdiction where it does Limestone or any of its Subsidiaries do not file a Return, nor has Tax Returns that Limestone or any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it its Subsidiaries is or may be subject to taxation by that jurisdictionjurisdiction nor is there any factual basis for any such claim.
(iv) Neither Limestone nor any of its Subsidiaries has applied for any ruling from any Governmental Authority with respect to Taxes nor entered into a closing agreement (or similar arrangement) with any Governmental Authority.
(vi) Neither Limestone nor any of its Subsidiaries has been audited by any Governmental Authority for taxable years ending on or subsequent to December 31, 2015. No Tax audit or administrative or judicial Tax proceedings of any Governmental Authority are pending or being conducted with respect to Limestone or any of its Subsidiaries and, to the Knowledge of Limestone, no such audit or other proceeding has been threatened. No Governmental Authority has asserted, is now asserting, or, to the Knowledge of Limestone, is threatening to assert against Limestone or any of its Subsidiaries any deficiency or claim for additional Taxes.
(vii) Neither Limestone nor any of its Subsidiaries (A) is a party to any Tax allocation or sharing agreement (other than a tax allocation agreement between and among Limestone and its Subsidiaries), (B) has ever been a member of an affiliated group of corporations, within the meaning of Section 1504 of the Code, other than an affiliated group of which Limestone is or was the common parent corporation (the “Limestone Group”), or (C) has any liability for the Taxes of any Person (other than members of the Limestone Group) as a transferee or successor, by contract, or otherwise.
(viii) Neither Limestone nor any of its Subsidiaries has agreed to any extension of time with respect to any Tax Return or a Tax assessment or deficiency, and no such extension of time has been requested.
(ix) Neither Limestone nor any of its Subsidiaries has agreed, nor is it required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise that will affect its liability for Taxes.
(x) Except as set forth on Schedule 4.20(i), none Section 5.01(p) of the Stewardship Entities Limestone Disclosure Schedule, there are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Limestone or its Subsidiaries is a party that could be treated as a partnership for Tax purposes.
(xi) Except as set forth on Section 5.01(p) of the Limestone Disclosure Schedule, neither Limestone nor any of its Subsidiaries is a party to any Contract agreement, contract, arrangement or plan that would has resulted, or could result, separately individually or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(jxii) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result assets of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and Bank are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-tax exempt bond financed property” within the meaning of Section 168(g)(5) 168 of the Code and the Bank is not a party to a “long-term contract” within the meaning of Section 460 of the Code.
(wxiii) None of the Indebtedness Limestone has not taken any action and is not aware of any Stewardship Entity constitutes (i) fact or circumstance that would reasonably be expected to prevent the Parent Merger from qualifying as a “corporate acquisition indebtednessreorganization” (as defined in within the meaning of Section 279(b368(a) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Limestone Bancorp, Inc.), Merger Agreement (Limestone Bancorp, Inc.)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely (A) All Tax Returns that are required to be filed on its behalf or before the Closing Date (taking into account any extension extensions of time within which to filefile that have not expired) each Return required by or with respect to the FNBB Group have been or will be timely filed on or sent by it to any Taxing Authority in respect of any Taxesbefore the Closing Date, each of which was correctly completed (B) all such Tax Returns are or will be true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalfC) all Taxes due and payable for all Tax periods by or portions thereof with respect to the FNBB Group (whether or not shown as due on any Tax Return) have been timely paid in full, (D) the unpaid Taxes of the FNBB Group did not, as of the date of the most recent financial statements included in FNBB’s SEC Reports, exceed the reserve for Tax liability set forth on the face of such financial statements and do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the FNBB Group in filing its Tax Returns, (iiiE) established on all deficiencies asserted or assessments made as a result of examinations conducted by any taxing authority have been paid in full, (F) no issues that have been raised by the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof relevant taxing authority in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets examination of any of the Stewardship Entities, except Permitted Encumbrances.
Tax Returns referred to in clause (dA) None are currently pending and (G) no statutes of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations limitation with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit FNBB Group have been waived by or other proceeding pending, nor has there been any notice to any on behalf of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other LawFNBB Group.
(fii) To the Knowledge of Stewardship, no additional Taxes will be assessed against any FNBB has made available to TriCo (A) true and correct copies of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all U.S. federal, state, local and foreign income Tax Returns filed by or on behalf of the FNBB Group for each of the three most recent fiscal years for which such returns have been filed and (B) any audit report issued within the last three years relating to Taxes due from or with respect to the Stewardship Entities for taxable periods ended FNBB Group or its income, assets or operations. Section 5.03(p)(ii) of FNBB’s Disclosure Schedule sets forth any income or franchise Tax Returns filed by or on or after December 31, 2015, indicates those Returns behalf of the FNBB Group that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entitiesexamined by any taxing authority since January 1, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia2013.
(hiii) To the Knowledge of StewardshipFNBB, none except as set forth in Section 5.03(p)(iii) of FNBB’s Disclosure Schedule, there are no audits or investigations by any taxing authority or proceedings in progress with respect to the Stewardship Entities FNBB Group, nor has the FNBB Group received any Liability for Taxes notice from any taxing authority that it intends to conduct such an audit or investigation.
(iv) No claim has been made in writing during the past five (5) years by a taxing authority in a jurisdiction where it the FNBB Group does not already file a Return, nor has any of Tax Returns that the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it FNBB Group is or may be subject to taxation by that jurisdiction.
(iv) The FNBB Group has withheld and paid over all Taxes required to have been withheld and paid over, and complied with all information reporting and backup withholding requirements, including maintenance of required records thereto, in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party and has complied in all material respects with all applicable laws, rules and regulations relating to the withholding and payment of Taxes.
(vi) The FNBB Group does not have a permanent establishment in any country other than the United States under any applicable Tax treaty between the United States and such other country and is not subject to income Tax in any country other than the United States.
(vii) There are no Liens or other encumbrances on any of the assets of the FNBB Group that arose in connection with any failure (or alleged failure) to pay any Tax.
(viii) Except as set forth on Schedule 4.20(i)in Section 5.03(p)(viii) of FNBB’s Disclosure Schedule, none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No no closing agreements, extensions of time within which to file any Tax Return, private letter rulings (or comparable rulings), technical advice memoranda or similar agreements or rulings have been entered into into, requested of or issued by any Taxing Authority taxing authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pendingFNBB Group.
(lix) Except as set forth on Schedule 4.20(l)in Section 5.03(q)(ix) of FNBB’s Disclosure Schedule, none no member of the Stewardship Entities is FNBB Group has been, in the past five (5) years, a party to any Tax allocation, sharing, indemnity, a transaction reported or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related intended to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been qualify as a United States real property holding corporation within the meaning of reorganization under Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) 368 of the Code.
(n) None . No member of the Stewardship Entities (i) FNBB Group has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment that was reported or otherwise constituted a distribution of shares under Section 355 of the Code that (i) took place during in the two (2) year period ending on years prior to the date of this Agreement or (ii) that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with that includes the transactions Transaction contemplated by this Agreement.
(px) None No member of the Stewardship Entities FNBB Group is or has been, a United States real property holding corporation within the meaning of Section 897(c) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; the Transaction contemplated by this Agreement is not subject to withholding under Section 1445 of the Code, and no stock transfer Taxes, sales Taxes, use Taxes or real estate transfer or gains Taxes will be imposed on the Transaction contemplated by this Agreement.
(xi) The FNBB Group will not be required to include any material item of income in, or exclude any material item of deduction from its taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any of the following that occurred or exists on or prior to the Closing Date: (A) a “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of the Code or of the Tax laws of any state or locality), (B) an installment sale or open transaction, (C) a prepaid amount, or (D) change in the accounting method of FNBB pursuant to Section 481 of the Code (or any corresponding or similar provision of the Code or of the Tax laws of any state or locality).
(xii) Except as set forth in Section 5.03(p)(xii) of FNBB’s Disclosure Schedule, neither FNBB nor any of its Subsidiaries is a party to any Tax sharing, Tax allocation or similar agreement or arrangement (whether or not written) with any Person.
(xiii) The FNBB Group has not (A) consummated or participated in, and is not currently participating in, any transaction which was or is a “tax shelter” transaction as defined in Section 6662, 6011, 6111 or 6112 of the Code, applicable regulations thereunder or other related published guidance from the IRS or (B) engaged in any transaction that is subject could give rise to disclosure (1) a registration obligation with respect to any Person under Treasury Regulation Section 1.6011-4 6111 of the Code or 1.6011-4Tthe regulations thereunder, (2) a list maintenance obligation with respect to any person under Section 6112 of the Code or the regulations thereunder, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)3) or a disclosure obligation as a “potentially abusive tax shelterreportable transaction” (within under Section 6011 of the meaning of Treasury Regulation Section 301.6112-1(b))Code or the regulations thereunder.
(qxiv) None Except as set forth in Section 5.03(p)(xiv) of the Stewardship Entities has a “permanent establishment” in any country other than the United StatesFNBB’s Disclosure Schedule, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No no power of attorney granted by any member of the Stewardship Entities FNBB Group relating to Taxes is currently in force.
(sxv) Each No member of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities FNBB Group has been a member of a consolidated, combined, unitary or affiliated group (other than a group of which FNBB is the parent) or has any partnership liability for Taxes of any Person (other than another member of the FNBB Group) under Section 1.1502-6 of the regulations of the U.S. Treasury (“Treasury Regulations”) or joint venture any similar provision of state, local, or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable foreign law, or as a result of such membership transferee or holding has not expiredsuccessor, by contract, or otherwise.
(vxvi) No property member of the FNBB Group has taken any action or failed to take any action, or is aware of any Stewardship Entity is (i) property fact or circumstance, in each case, that could reasonably be expected to prevent the relevant Stewardship Entity is or will be required to treat Merger from qualifying as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) a “tax-exempt use propertyreorganization” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5368(a) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Trico Bancshares /), Merger Agreement (FNB Bancorp/Ca/)
Tax Matters. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Each The Company and each of the Stewardship Entities its Subsidiaries has prepared (ior caused to be prepared) has and timely filed or has had timely filed on its behalf (taking into account any extension valid extensions of time within which to file) each Return all income Tax Returns and all other material Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesthem, each of which was correctly completed and all such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate in all material respects respects.
(b) The Company and accurately reflected any material Liability for Taxes each of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) its Subsidiaries has timely and properly paid (or had paid on its behalf) all Taxes owed by it that are due and payable for all Tax periods or portions thereof (whether or not shown on such any Tax Returns, ). The unpaid Taxes of the Company and its Subsidiaries as of the Balance Sheet Date did not exceed the accruals and reserves for Taxes (iiiexcluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax income) established set forth on the books of account of Company Balance Sheet (other than in the Stewardship Entitiesnotes thereto), in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof Company has not since the Balance Sheet Date incurred any liability for Taxes other than in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each the ordinary course of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesbusiness.
(c) There As of the date of this Agreement, there are no Encumbrances for Taxes upon any assets pending or, to the Knowledge of the Company, threatened, audits, examinations, investigations, claims or other proceedings in respect of any Taxes of the Stewardship Entities, except Permitted EncumbrancesCompany or any of its Subsidiaries.
(d) None There are no Liens for Taxes on any of the Stewardship Entities has requested assets of the Company or any extension of time within which to file any Return, which Return has not since been filed.its Subsidiaries other than Permitted Liens
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities Company or any of its Subsidiaries has entered into been a closing agreement pursuant “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date of this Agreement that was purported or intended to be governed by Section 7121 355 of the Code (or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law).
(kf) All amounts of Tax required to be withheld by the Company and each of its Subsidiaries have been timely withheld, and to the extent required by applicable Law, all such withheld amounts have been timely paid over to the appropriate Governmental Authority.
(g) Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to an assessment or deficiency for Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course).
(h) No Tax rulings, requests for rulings, closing agreements, private letter rulings rulings, technical advance memoranda or other similar agreements or rulings (including any application for a change in accounting method under Section 481 of the Code) have been entered into with, issued by, or issued by filed with any Taxing Governmental Authority with respect to or relating to the Company or any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pendingits Subsidiaries.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(mi) Neither Stewardship the Company nor Stewardship Bank has been a United States real property holding corporation within the meaning any of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
its Subsidiaries (n) None of the Stewardship Entities (iA) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Stewardshipthe Company) or (iiB) has any Liability liability for the Taxes of any Person person (other than Stewardship the Company or Stewardship Bankany of its Subsidiaries) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, pursuant to any contractual obligation (excluding customary Tax indemnification obligations in commercial contracts not primarily relating to Taxes) or otherwise.
(oj) None Neither the Company nor any of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or its Subsidiaries has participated in any “confidential corporate tax shelterlisted transaction” (within the meaning of Treasury Regulation Section 301.61111.6011-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)4(b)(2).
(qk) None For purposes of the Stewardship Entities has a this Agreement: (x) “permanent establishmentTax” in shall mean any country and all federal, state, local or foreign taxes, fees, levies, duties, tariffs, imposts, and other than the United Statessimilar charges (together with any and all interest, as such term is defined under any applicable Tax treaty between the United States penalties and such other country.
(radditions to tax) No power of attorney granted imposed by any Governmental Authority responsible for the collection or enforcement of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangementtaxes, including this Agreement, pursuant to which any current taxes or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 other charges on or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code income, franchises, windfall or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Codeother profits, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.gross receipts, property, sales, use, capital
Appears in 2 contracts
Samples: Merger Agreement (Quest Software Inc), Merger Agreement (Dell Inc)
Tax Matters. Except as set forth in Section 3.11 of the Company Disclosure Schedule and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Each of the Stewardship Entities The Company and its Subsidiaries (i) has have timely filed or has had timely caused to be filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to have been filed by the Company or any of its Subsidiaries, all such Tax Returns are true, correct and complete, and all such Tax Returns filed on or before December 31, 2007 have been examined by the appropriate Governmental Entity or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnhas expired, (ii) have timely and properly paid paid, collected or withheld or caused to be paid, collected or withheld (or had paid on its behalftaking into account any extension of time within which to pay) all Taxes due (including Taxes required to have been withheld and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder, or other third party) due with respect to the periods covered by such Tax Returns other than Taxes that are being contested in good faith in appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP as shown on the Company’s most recent audited consolidated balance sheet, (iii) have established adequate accruals and reserves, in accordance with GAAP, on the Company’s most recent audited consolidated balance sheet for all Taxes payable by the Company and its Subsidiaries for all taxable periods and portions thereof through the date of the Company’s most recent audited consolidated balance sheet and (iv) have not incurred any liability for Taxes since the date of the Company’s most recent audited consolidated balance sheet other than in the ordinary course of business consistent with past practice.
(b) Each Neither the Company nor any of its Subsidiaries has received written notice from any Governmental Entity that a deficiency, delinquency, claim, audit, suit, proceeding, request for information or investigation is now pending, outstanding or, to the knowledge of the Stewardship Entities has made (Company, threatened against or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes the Company or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding of its Subsidiaries with regard respect to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or ReturnsTaxes. There are no outstanding subpoenas or requests Liens for information with respect to Taxes on any of the Returns assets of the Company or any of its Subsidiaries other than Company Permitted Liens. Within the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardshippreceding four years, no additional Taxes will be assessed against any claim has been made in writing by a Governmental Entity of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does the Company or one of its Subsidiaries has not file a Return, nor has any of filed Tax Returns that the Stewardship Entities received notice from a Taxing Authority in Company or such a jurisdiction that it Subsidiary is or may be subject to taxation by that jurisdiction.
(c) Neither the Company nor any of its Subsidiaries (i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to or bound by any Contract that would resultTax allocation, separately indemnification, sharing or similar agreement (other than an agreement solely among two or more of the Company and its Subsidiaries) or owes any amount under any such agreement or arrangement (excluding customary agreements to indemnify lenders in respect of Taxes and customary indemnity provisions in agreements for the aggregate, in the payment acquisition or divestiture of assets) or (ii) is or could be liable for any Tax of any “excess parachute payments” within person (other than the meaning of Company and its Subsidiaries) under Section 280G 1.1502-6 of the Code, and Treasury regulations promulgated under the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities Code (or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions similar provision of state, local or foreign Tax Law.
(k) No closing agreementsby virtue of membership in any affiliated, private letter rulings consolidated, combined or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated unitary group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of LawCompany), or as a transferee or successor, or by Contract, or otherwisecontract.
(od) None Neither the Company nor any of the Stewardship Entities constitutes either its Subsidiaries was a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment transaction intended to qualify under Section 355 of the Code that (i) took place during within the past two (2) year period ending on the date of this Agreement years or (ii) could otherwise constitute as part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) plan that includes any of the Code) in conjunction with the transactions contemplated by this AgreementTransactions.
(pe) None Neither the Company nor any of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or its Subsidiaries has participated in any “confidential corporate tax shelterlisted transaction” (within the meaning or “transaction of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use propertyinterest” within the meaning of Section 168(h1.6011-4(b)(2) and (6), respectively, of the Treasury regulations promulgated under the Code.
(f) Neither the Company nor any of its Subsidiaries (i) has filed any extension of time within which to file any Tax Returns that have not been filed (except for extensions of time to file Tax Returns other than income Tax Returns or gross receipts Tax Returns, which extensions were obtained in the ordinary course), (ii) has entered into any agreement waiving or extending the statute of limitations or the period of assessment or collection of any Taxes, which statute of limitations or period, as applicable, has not expired, (iii) has granted any power of attorney that is in force with respect to any matters relating to any Taxes, (iv) has proposed to enter into an agreement relating to Taxes with a Governmental Entity, which proposal is pending or (v) has, since December 31, 2007, been issued any private letter ruling, technical advice memorandum or other similar agreement or ruling from a Governmental Entity with respect to Taxes.
(g) Neither the Company nor any of its Subsidiaries will be required to include any item of income in taxable income or exclude any item of deduction from taxable income, in each case, for any taxable period (or portion thereof) ending after the Closing Date (whether or not under Section 481 of the Code or any corresponding or similar provision of applicable state, local or foreign Law) as a result of any (i) transaction undertaken or accounting method adopted or changed by the Company or any of its Subsidiaries on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) executed on or prior to the Closing Date by the Company or any of its Subsidiaries, (iii) “tax-exempt bond financed property” intercompany transaction within the meaning of Section 168(g)(51.1502-13 of Treasury regulations promulgated under the Code or excess loss account within the meaning of Section 1.1502-19 of Treasury regulations promulgated under the Code (or any corresponding or similar provision of state, local or foreign Law) entered into or created, as applicable, by the Company or any of its Subsidiaries on or prior to the CodeClosing Date, (iv) installment sale or open transaction disposition made by the Company or any of its Subsidiaries on or prior to the Closing Date or (v) prepaid amount received by the Company or any of its Subsidiaries on or prior to the Closing Date.
(wh) None of the Indebtedness of any Stewardship Entity constitutes As used in this Agreement, (i) “corporate acquisition indebtednessTaxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (as defined in Section 279(btogether with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) of the Code) imposed by any Governmental Entity, including taxes on or with respect to which any interest deductions may be disallowed under Section 279 income, franchises, windfall or other profits, gross receipts, occupation, property, transfer, sales, use, capital stock, severance, alternative minimum, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of excise, withholding, ad valorem, value added or other taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the Code same or a similar nature to any of the foregoing and (ii) an “applicable high yield discount obligationTax Return” under Section 163(i) of the Codemeans any return, report or similar filing (including any elections, notifications, declarations, schedules or attachments thereto, and none any amendment thereof) required to be filed with respect to Taxes, including any information return, claim for refund, amended return or declaration of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codeestimated Taxes.
Appears in 2 contracts
Samples: Merger Agreement (DPL Inc), Merger Agreement (DPL Inc)
Tax Matters. (a) Each of the Stewardship Entities Deer:
(i) has timely paid or caused to be paid all material Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(ii) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, each of which was correctly completed Deer were complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, respects; and
(iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(ei) No deficiency for since January 1, 2006, Deer has not been notified by any Governmental Body that any material issues have been raised (and no such issues are currently pending) by any Governmental Body in connection with any Tax Return filed by or on behalf of Deer; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Deer; no Tax liens have been filed against Deer or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved Deer;
(ii) full and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there adequate accrual has been no Tax audit or other administrative proceeding or court proceeding with regard to any made (A) on the Deer Balance Sheet, and the books and records of Deer for all income taxes currently due and all accrued Taxes or any Return of any of the Stewardship Entities not yet due and payable by Deer for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Deer Balance Sheet Date, and (B) on the estimated reserves books and records of Deer for such all Taxes established payable by Deer for all periods beginning after the Stewardship Entities. To Deer Balance Sheet Date;
(iii) No member of the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Deer has incurred any liability for Taxes from and after the Deer Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
(iv) Deer has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
(v) Deer does not have any liability in respect of any Tax sharing agreement with any Person;
(vi) No member of the Stewardship Entities.Deer has incurred any liability to make any payments either alone or in conjunction with any other payments that would constitute a “parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state local or foreign Applicable Law related to Taxes);
(gvii) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to no claim has been made within the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the last three years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes taxing authority in a jurisdiction where it in which Deer does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Deer is or may be subject to taxation by that jurisdiction.;
(iviii) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement Share Exchange will not be a factor causing payments trigger the realization or recognition of intercompany gain or income to be made by any of the Stewardship Entities Deer or any other Person that Deer Tax Affiliate under the Federal consolidated return regulations with respect to Federal, state or local taxes; and
(ix) Deer is not currently, nor has it been at any time during the previous five years, a “U.S. real property holding corporation” and, therefore, the Shares are not deductible (“U.S. real property interests,” as such terms are defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Share Exchange Agreement (He Ying), Share Exchange Agreement (Deer Consumer Products, Inc.)
Tax Matters. (a) Each of the Stewardship Entities Purchaser:
(i) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(ii) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, Purchaser and each of which was correctly Purchaser Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, respects; and
(iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eiv) No deficiency has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Purchaser through the date hereof for the periods ending after December 31, 2004.
(v) since January 1, 2005, has not been notified by the IRS or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Purchaser or any Purchaser Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Purchaser or any present or former Affiliate of Purchaser (for years that it was an Affiliate); no Tax liens have been filed against Purchaser or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Purchaser or any Return is outstanding, nor is any request present or former Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was an Affiliate), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.;;
(fvi) To has made full and adequate accrual (i) on the Knowledge Purchaser Balance Sheet, and the books and records of Stewardship, no additional Purchaser for all income Taxes will be assessed against any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Purchaser for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Purchaser Balance Sheet Date, and (ii) on the estimated reserves books and records of Purchaser and for such all Taxes established payable by Purchaser for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Purchaser Balance Sheet Date;
(vii) has not incurred any liability for Taxes from and after the Purchaser Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
(viii) has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code;
(ix) has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
(x) has no liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Purchaser has been bound have been terminated;
(xi) has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
(A) shall be non-deductible under, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Stewardship Entities.Code (or any corresponding provision of state local or foreign income Tax Law); or
(gB) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code;
(xii) has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.accounting methods of Purchaser; and
(hxiii) To is not currently, nor has it been at any time during the Knowledge of Stewardshipprevious five years, none a “U.S. real property holding corporation” and, therefore, the Purchaser Common Stock is not “U.S. real property interests,” as such terms are defined in Section 897 of the Stewardship Entities Code. No claim has been made within the last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Purchaser does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Purchaser is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.;
Appears in 2 contracts
Samples: Share Exchange Agreement (Beijing YSKN Machinery & Electronic Equipment Co., Ltd.), Share Exchange Agreement (Pacific Goldrim Resources, Inc.)
Tax Matters. (a) Each Except for those matters set forth in Section 3.9(a) of the Stewardship Entities Company Disclosure Schedule:
(i) each of the Company and its Subsidiaries has timely filed filed, or has had caused to be timely filed on its behalf (taking into account any valid extension of time within which to file) each Return ), all material Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesit, each of which was correctly completed and all such filed Tax Returns are correct and complete in all material respects respects;
(ii) all material amounts of Taxes (whether or not assessed) required to be withheld and/or paid by or on behalf of each of the Company and accurately reflected any material Liability for its Subsidiaries have been withheld and paid, as applicable (whether or not such Taxes are shown or required to be shown on a Tax Return);
(iii) the unpaid Taxes of the relevant Stewardship Entity, Company and its Subsidiaries do not materially exceed the reserve for liabilities for Taxes (excluding any Affiliate of such entity, covered by such Return, (iireserve for deferred Taxes established to reflect timing differences between book and taxable income) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account face of the Stewardship Entitiesmost recent balance sheet included in the Company SEC Documents (excluding any notes thereto) as adjusted solely for Taxes incurred and paid in the ordinary course of business since the Balance Sheet Date consistent (except for differences resulting from ordinary course fluctuations in the income, assets or operations of the Company and its Subsidiaries or any applicable changes in accordance Law or in GAAP) with GAAP Taxes incurred and consistent with past practices, adequate reserves for paid in the payment of any Taxes not then due and payable and most recent comparable prior period;
(iv) complied in all material respects with all applicable Laws relating to neither the withholding Company nor any of Taxes and the payment thereof in connection with any amounts paid its Subsidiaries has outstanding Contracts or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made waivers extending (or caused to be made on its behalfhaving the effect of extending) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Tax Returns required to be filed by or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to the Company or any of its Subsidiaries;
(v) no Action with respect to Taxes is pending, in progress or has been threatened in writing with respect to the Company or any of its Subsidiaries, and no written notice of such an Action has been received by the Company or any of its Subsidiaries;
(vi) no claim has been made by a Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns that such Person is or may be subject to taxation by such jurisdiction that has not been resolved;
(vii) neither the Company nor any of its Subsidiaries (A) is or has been a member of any affiliated, consolidated, combined or unitary group for Tax purposes (other than any such group of which the Stewardship Entities. None Company is the common parent), (B) is a party to, or is bound by, any Tax allocation, sharing, indemnity or other similar Contract with respect to Taxes (other than one or more Tax-related provisions in a commercial agreement a principal purpose of which is not the Stewardship Entities has entered into allocation or sharing of any Tax), (C) is a party to or bound by any closing agreement pursuant to Section 7121 of the Code (or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and or foreign income Returns filed Law) or any other Contract with any Governmental Authority with respect to Taxes, or has requested or received a ruling from any Governmental Authority with respect to Taxes, that individually or in the Stewardship Entities for taxable periods ended aggregate could have a material effect on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies liability of the Returns of each of Company or any Subsidiary for Taxes after the Stewardship Entitiesdate hereof, as filed with the Internal Revenue Service and all state or local Tax jurisdictions (D) is liable for the years ended December 31Taxes of another Person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, 2015local or foreign Law, 2016 and 2017 have been provided or made available to Columbia.as a transferee or successor;
(hviii) To neither the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, Company nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a its Subsidiaries has been party to any Contract that would result, separately or “reportable transaction” as defined in the aggregate, in the payment of any “excess parachute payments” within the meaning of Treasury Regulations Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period 1.6011-4 (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition similar transaction for purposes of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Law) that has not been properly reported in a Tax Law.Return;
(kix) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to neither the Company nor any of the Stewardship Entities which would its Subsidiaries will be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none required to include a material item of the Stewardship Entities is a party to any Tax allocation, sharing, indemnityincome in, or reimbursement agreement exclude a material item of deduction from, taxable income for any taxable period (or arrangement portion thereof) ending after the Closing Date, in each case, as a result of an action taken on or prior to the Closing Date (other than any customary Tax indemnification provisions in the ordinary course commercial agreements or other arrangements that are not primarily related to Taxesof business consistent with past practice).
(m) Neither Stewardship nor Stewardship Bank has been , including by virtue of a United States real property holding corporation within the meaning change in method of accounting under Section 897(c)(2) 481 of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law) made on or prior to the Closing Date, an installment sale or open transaction effected on or prior to the Closing Date, a prepaid amount received on or prior to the Closing Date or an election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law) made prior to the Closing Date;
(x) neither the Company nor any of its Subsidiaries has any material deferred gain or loss arising out of any deferred intercompany transactions, as described in Treasury Regulations Section 1.1502-13 (or any similar provision of state, local or foreign Law), or, in the case of any Subsidiary, has a material excess loss account in its stock, as described in Treasury Regulations Section 1.1502-19 (or any similar provision of state, local or foreign Law);
(xi) no material Tax ruling, Tax holiday or other Contract entered into by the Company or any of its Subsidiaries with any Governmental Authority with respect to Taxes will expire, be revoked or otherwise terminate, whether as a transferee result of the Merger, the Precedent Transaction or successor, by Contract, otherwise prior to the stated or otherwise.applicable term thereof as provided therein; and
(oxii) None within the past two (2) years, neither the Company nor any of the Stewardship Entities constitutes its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying stock intended to qualify for tax-free treatment under Section 355 of the Code that Code.
(b) Section 3.9(b) of the Company Disclosure Schedule sets forth the following information with respect to the Company and its Subsidiaries: (i) took place during a materially correct description of the two amount of any unused and unexpired net operating losses, unused and unexpired investment or other credits, unused and unexpired foreign Tax credits and excess charitable contributions of the Company or any of its Subsidiaries for federal income Tax, applicable state income tax, and alternative minimum Tax purposes (2including dates of expiration of such items for each of such purposes) as of December 31, 2013 and, utilizing reasonable assumptions given the fact that such information is not determined as of the closing of a taxable year, as of September 30, 2014 (assuming (x) the taxable year period ending of the Company ended on such date but allocating deductions computed on an annual basis such as depreciation and amortization pro rata based on the number of days in the current taxable year prior to such date divided by 365 and (y) such other items as are set forth on Section 3.9(b)(i) of the Company Disclosure Schedule), (ii) (A) the date of this Agreement or each ownership change (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of as defined in Section 355(e382(g)(1) of the Code) in conjunction with experienced by the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions Company that could give rise have an effect on the ability to an underpayment of Tax utilize the items described in clause (within i), (B) the meaning of consolidated section 382 limitation (as defined in Section 6662 382(b)(1) of the Code) on of the relevant Returns Company and its Subsidiaries as a result of each such ownership change, and (C) the amount, if any, of consolidated net unrealized built-in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns gain (as required defined in accordance with Section 6662(d)(2)(B382(h)(3) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as Company on the date of each ownership change, and (iii) a result materially correct description of the Tax basis in the assets of the Company and its Subsidiaries in the aggregate, and of the assets comprising the Transferred Assets (other than any shipping containers), in each case for federal income Tax purposes as of December 31, 2013 and, utilizing reasonable assumptions given the fact that such information is not determined as of the closing of a taxable year, as of September 30, 2014 (assuming (x) the taxable year of the Company ended on such date but taking into account deductions such as depreciation in the manner provided above and (y) such other items as are set forth on Section 3.9(b)(ii) of the Company Disclosure Schedule). Other than the effect on such net operating losses and basis of (w) ordinary course business operations for the period from and after January 1, 2014, (x) amortization and depreciation of asset Tax basis under applicable Law for such period (assuming amortization and depreciation computed on an annual basis is prorated on a daily basis as described above), (y) transactions contemplated by this Agreement that would not be deductible under or the Contribution, Assumption and Purchase Agreement or (z) such items set forth on Section 404 or 162(m3.9(b)(iii) of the Code.
(u) Except as set forth on Schedule 4.20(u)Company Disclosure Schedule, none of the Stewardship Entities there has been a member of any partnership or joint venture or no material change in the holder of a beneficial interest items listed in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is clause (i) property that and clause (iii) of this Section 3.9(b) since December 31, 2013, other than changes taken into account in arriving at the relevant Stewardship Entity is or will be required estimate of tax attributes as of September 30, 2014 referred to treat as being owned by another Person in clause (i) above. To the Knowledge of the Company, since May 3, 2012, neither the Company nor any of its Subsidiaries has undergone an ownership change under the provisions of Section 168(f)(8) 382 and/or Section 383 of the Code (as in effect prior to amendment by the Tax Reform Act or any comparable provisions of 1986state, local and foreign Law), (ii) “tax-exempt use property” within the meaning of . The depreciation and amortization amounts and years reflected on Section 168(h3.9(b) of the Code or Company Disclosure Schedule under the heading “Non-Hawaii Depreciation and Amortization Rollout as of December 31, 2013” reflects in all material respects the amount of depreciation and amortization of the assets of the Company and its Subsidiaries (iiiother than assets attributable to the Hawaii Business) “taxowned as of the date to which such schedule speaks that would be claimed during each year beginning January 1, 2014 and ending December 31, 2019, utilizing reasonable assumptions given the fact that such information is forward-exempt bond financed property” within looking, assuming (x) the meaning of Company and its Subsidiaries continue to hold such assets in the ordinary course during such period, (y) that such assets do not become worthless during such period and (z) such items as are disclosed on Section 168(g)(53.9(b)(iv) of the CodeCompany Disclosure Schedule.
(wc) None For purposes of the Indebtedness of any Stewardship Entity constitutes this Agreement: (i) “corporate acquisition indebtednessTaxes” shall mean all (as defined x) federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including but not limited to all income, alternative minimum, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, registration, lease, service, service use, withholding, payroll, employment, social security, unemployment, welfare, workers’ compensation, disability, environmental, capital production, premium, windfall profits, title, excise, severance, stamp, occupation, escheat, property, tonnage and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever and all interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Authority in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.connection
Appears in 2 contracts
Samples: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Tax Matters. Except as set forth in the Chancellor Disclosure Letter or the Chancellor SEC Documents, (aA) Each Chancellor and each of the Stewardship Entities (i) has its subsidiaries have timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return with the appropriate taxing authorities all material Tax Returns required to be filed through the date hereof and will timely file any such material Tax Returns required to be filed on or sent by it prior to any Taxing Authority in respect of any Taxes, each of which was correctly completed the Closing Date (except those under valid extension) and all such Tax Returns are and will be true and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnrespects, (ii) timely and properly paid (or had paid on its behalfB) all Taxes of Chancellor and each of its subsidiaries shown to be due on the Tax Returns described in (A) above have been or will be timely paid, (C) no material deficiencies for any Taxes have been proposed, asserted or assessed against Chancellor or any of its subsidiaries that have not been fully paid or adequately provided for in the appropriate financial statements of Chancellor and its subsidiaries, and no power of attorney with respect to any Taxes has been executed or filed with any taxing authority and no material issues relating to Taxes have been raised in writing by any governmental authority during any presently pending audit or examination, (D) Chancellor and its subsidiaries are not now subject to audit by any taxing authority and no waivers of statutes of limitation with respect to the Tax Returns have been given by or requested in writing from Chancellor or any of its subsidiaries, (E) there are no material liens for Taxes (other than for Taxes not yet due and payable for all Tax periods payable) on any assets of Chancellor or portions thereof whether or not shown on such Returnsany of its subsidiaries, (iiiF) established on neither Chancellor nor any of its subsidiaries is a party to or bound by (nor will any of them become a party to or bound by) any tax indemnity, tax sharing, tax allocation agreement, or similar agreement, arrangement or practice with respect to Taxes, (G) neither Chancellor nor any of its subsidiaries has ever been a member of an affiliated group of corporations within the books meaning of account Section 1504 of the Stewardship EntitiesCode, in accordance with GAAP and consistent with past practicesother than the affiliated group of which Chancellor is the common parent, adequate reserves for (H) neither Chancellor nor any of its subsidiaries has filed a consent pursuant to the payment collapsible corporation provisions of Section 341(f) of the Code (or any corresponding provision of state or local law) or agreed to have Section 341(f)(2) of the Code (or any corresponding provisions of state or local law) apply to any disposition of any Taxes not then due asset owned by Chancellor or any of its subsidiaries, as the case may be, (I) neither Chancellor nor any of its subsidiaries has agreed to make, nor is any required to make, any adjustment under Section 481(a) of the Code or any similar provision of state, local or foreign law by reason of a change in accounting method or otherwise, (J) Chancellor and payable and (iv) its subsidiaries have complied in all material respects with all applicable Laws laws, rules and regulations relating to the withholding of 29 37 Taxes and the payment thereof in connection with any amounts paid (K) no property owned by Chancellor or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
its subsidiaries (i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments property required to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat treated as being owned by another Person under person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code (of 1954, as amended and in effect immediately prior to amendment by the enactment of the Tax Reform Act of 1986), ; (ii) “tax-constitutes "tax exempt use property” " within the meaning of Section 168(h168(h)(l) of the Code Code; or (iii) “tax-is tax exempt bond financed property” property within the meaning of Section 168(g)(5168(g) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Capstar Broadcasting Corp), Agreement and Plan of Merger (Chancellor Media Corp of Los Angeles)
Tax Matters. (a) Each of the Stewardship Entities (i) has All material Tax returns required to have been filed with respect to the Acquired Assets or the Assumed Liabilities have been timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) with the appropriate taxing authority and each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxessuch Tax return is true, each of which was correctly completed complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, respects.
(ii) timely All material Taxes shown to be due on any such Tax returns, and properly paid (or had paid on its behalf) all material Taxes due and payable for all attributable to the Acquired Assets or the Assumed Liabilities, have been timely paid, withheld and timely paid over to the appropriate taxing authority, other than those Taxes the failure of which to be paid would neither result in a Lien (other than a Permitted Lien) on the Acquired Assets nor become a liability of Purchaser.
(iii) No notice of deficiency or assessment of Taxes has been received in writing from any taxing authority with respect to the Acquired Assets or the Assumed Liabilities that is currently pending or has not been paid in full. There are no Liens (other than Permitted Liens) on any of the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Tax periods or portions thereof (whether or not shown on such Returns, (iii) established on Tax relates to the books of account of Acquired Assets or the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Assumed Liabilities).
(iv) complied in all All material respects Taxes with all applicable Laws relating respect to the withholding of Taxes Acquired Assets and the payment thereof Assumed Liabilities required to have been withheld and paid over to the relevant taxing authority in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to party have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved so withheld and paid in full. No waiverover, extension or comparable consent given by any and each of the Stewardship Entities regarding the application of the statute of limitations Parent, Seller and their Affiliates has otherwise complied with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent all applicable Laws relating to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any withholding of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, Acquired Assets and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expiredAssumed Liabilities.
(v) No property Each of any Stewardship Entity is the Master Trust, the Trust and WFB Funding is, at all times since its formation (ior, in the case of WFB Funding, since the pre-Closing effectiveness of the amendment of its operating agreement as described in Schedule 3.2(a)(vi)) property that has been, and at all times through and including the relevant Stewardship Entity is or Closing will be required to treat an entity disregarded as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Codeseparate from its owner for U.S. federal income tax purposes.
(wvi) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (The Class A Notes are properly treated as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codefor all U.S. federal income tax purposes.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Cabelas Inc), Sale and Purchase Agreement (Cabela's Master Credit Card Trust)
Tax Matters. (a) Each of the Stewardship Entities (i) (A) All Tax Returns that have been filed by or with respect to the BVCC Group, including BVCC and its Subsidiaries, have been timely filed; (B) all such Tax Returns are true and complete in all material respects; (C) all Taxes due of the BVCC Group, including BVCC and its Subsidiaries, shown on the Tax Returns referred to in clause (A) have been paid in full; (D) the Tax Returns referred to in clause (A) have not been examined by the IRS or the appropriate Tax authority, the BVCC Group has timely filed or has had timely filed on its behalf (taking into account not extended the statute of limitations for any extension such Tax Returns and the period for assessment of time within the Taxes in respect of which to file) each Return such Tax Returns were required to be filed has expired; (E) all deficiencies asserted or sent assessments made as a result of examinations conducted by it to any Taxing Authority taxing authority have been paid in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of full; (F) no issues that have been raised by the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof taxing authority in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets examination of any of the Stewardship Entities, except Permitted EncumbrancesTax Returns referred to in clause (A) are currently pending and (G) no member of the BVCC Group has extended any statutes of limitation with respect to any Taxes of BVCC.
(dii) None BVCC has made available to GLB true and correct copies of the Stewardship Entities has requested any extension United States federal income Tax Returns filed by BVCC for each of time within the three most recent fiscal years for which to file any Return, which Return has not since such returns have been filed.
(eiii) No deficiency for any Taxes has been proposed, asserted or assessed against Neither BVCC nor any of the Stewardship Entities that its Subsidiaries has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations liability with respect to any Taxes that accrued on or before the end of the most recent period covered by BVCC's Securities Documents filed prior to the date hereof in excess of the amounts accrued or subject to a reserve with respect thereto that are reflected in the financial statements included in BVCC's Securities Documents filed on or prior to the date hereof.
(iv) Neither BVCC nor any of its Subsidiaries is a party to any Tax allocation or sharing agreement, is or has been a member of an affiliated group filing consolidated or combined Tax Returns other than a group the common parent of which is or was BVCC or otherwise has any liability for the Taxes of any Person other than a member of the BVCC Group.
(v) No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any taxing authority with respect to BVCC and its Subsidiaries.
(vi) Neither BVCC nor any of its Subsidiaries maintains any compensation plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(vii) As of the date hereof, BVCC has no reason to believe that any conditions exist that might prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(viii) (A) No Tax is required to be withheld pursuant to Section 1445 of the Code as a result of the Transaction and (B) all Taxes that BVCC or any Return of its Subsidiaries is outstandingor was required by law to withhold or collect have been duly withheld or collected and, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e)to the extent required by applicable law, there has have been no Tax audit paid to the proper Governmental Authority or other administrative proceeding or court proceeding with regard to any Person.
(ix) There are no Liens for Taxes or any Return of on any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit assets of BVCC or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by its Subsidiaries, except for Liens for Taxes not yet due and payable.
(x) Neither BVCC nor any Taxing Authority regarding any such Tax audit of its Subsidiaries (A) has agreed, or other proceeding, noris required, to the Knowledge of Stewardship, is make any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to adjustment under Section 7121 481(a) of the Code or any similar comparable provision under of state, local or foreign law or has any other Lawknowledge that a Governmental Authority has proposed any such adjustment or change in accounting method with respect to BVCC or its Subsidiaries or (B) has any application pending with any Governmental Authority requesting permission for any change in accounting method.
(fxi) To Except as set forth in Schedule 5.3(p) of the Knowledge of StewardshipBVCC Disclosure Schedule, no additional Taxes will be assessed against neither BVCC nor any of the Stewardship Entities its Subsidiaries is a successor for Tax purposes to any Tax period Person by way of merger, reorganization or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entitiessimilar transaction.
(gxii) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have No claim has ever been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes by a Governmental Authority in a jurisdiction where it BVCC or any of its Subsidiaries does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in Tax Returns that BVCC or such a jurisdiction that it Subsidiaries is or may be subject to taxation by that jurisdiction.
(ixiii) Neither BVCC nor any of its Subsidiaries has been the "distributing corporation" within the meaning of Section 355(c)(2) of the Code or has been the subject of a distribution with respect to a transaction described in Section 355 of the Code within the five-year period ending as of the date of this Agreement.
(xiv) Except as set forth on in Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(25.3(p) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) BVCC Disclosure Schedule, neither BVCC nor any of the Code.
(n) None of the Stewardship Entities (i) its Subsidiaries has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged participated in any transaction "reportable transaction" or "listed transaction" that is subject required to disclosure under Treasury Regulation be reported pursuant to Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other countryTreasury Regulations.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Great Lakes Bancorp Inc), Merger Agreement (Bay View Capital Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return All Tax Returns required to be filed prior to the date hereof with respect to NEC or sent by it to any Taxing Authority in respect of any Taxesits income, properties, franchises or operations have been timely filed, each of which was correctly completed such Tax Return has been prepared in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied compliance in all material respects with all applicable Laws relating laws and regulations, and all such Tax Returns are true and accurate in all material respects. All Taxes due and payable by or with respect to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to NEC have been made paid, and all Taxes which have been incurred by NEC but which are not yet due are accrued on the Current Balance Sheet, subject to avoid customary year end adjustments and accruals for current year Taxes. Without limiting the foregoing: (i) with respect to each taxable period of NEC, either such taxable period has been audited by the relevant taxing authority or the time for assessing or collecting Taxes with respect to each such taxable period has closed and such taxable period is not subject to review by any underpayment penalties.
relevant taxing authority; (cii) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within deficiency or proposed adjustment which to file any Return, which Return has not since been filed.
(e) No deficiency settled or otherwise resolved for any amount of Taxes has been proposed, asserted or assessed by any taxing authority against NEC; (iii) NEC has not consented to extend the time in which any Taxes may be assessed or collected by any taxing authority; (iv) NEC has not requested or been granted an extension of the Stewardship Entities that has not been resolved and paid time for filing any Tax Return to a date later than the Merger Document Execution Date; (v) there is no action, suit, taxing authority proceeding, or audit or claim for refund now in full. No waiverprogress, extension pending or, to the knowledge of NEC, threatened against or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes NEC regarding Taxes; (vi) NEC has not made an election or any Return is outstanding, nor is any request for any such waiver or filed a consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to under Section 7121 341(f) of the Code (or any similar corresponding provision under any of state, local or foreign law) on or prior to the Merger Closing Date; (vii) there are no Liens for Taxes (other Law.
than for current Taxes not yet due and payable and delinquent) upon the assets of NEC; (fviii) To the Knowledge NEC will not be required (A) as result of Stewardship, no additional Taxes will be assessed against any a change in method of the Stewardship Entities accounting for any Tax a taxable period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of StewardshipMerger Closing Date, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of to include any adjustment under Section 481(c) of the Stewardship Entities.
Code (g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions corresponding provision of state, local or foreign Tax Law.
law) in taxable income for any taxable period (kor portion thereof) No beginning after the Merger Closing Date or (B) as a result of any "closing agreementsagreement", private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions described in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) 7121 of the Code during (or any corresponding provision of state, local or foreign law), to include any item of income or exclude any item of deduction from any taxable period (or portion thereof) beginning after the applicable period specified in Section 897(c)(1)(A)(iiMerger Closing Date; (ix) of the Code.
(n) None of the Stewardship Entities (i) NEC has not been a member of an affiliated group filing a consolidated Return (other than a group as defined in Section 1504 of the common parent of which was StewardshipCode) or filed or been included in a combined, consolidated or unitary income Tax Return; (iix) NEC is not a party to or bound by any tax allocation or tax sharing agreement or has any Liability current or potential contractual obligation to indemnify any other Person with respect to Taxes; (xi) there are no material additional Taxes owed by NEC for any period for which Tax Returns have been filed in excess of the Taxes amounts shown as due and payable thereon; (xii) NEC has not made any payments, and will not become obligated (under any contract entered into on or before the Merger Document Execution Date) to make any payments, that will be non-deductible under Section 280G of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 the Code (or any similar corresponding provision of Lawstate, local or foreign law), as ; (xiii) the Shareholders are not a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” ("foreign person" within the meaning of Section 355(a)(1)(A) 1445 of the Code; (xiv) no claim has ever been made by a taxing authority in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code jurisdiction where NEC does not file Tax Returns that NEC is or may be subject to Taxes assessed by such jurisdiction; (ixv) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged NEC does not have any permanent establishment in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United Statesforeign country, as such term is defined under any applicable Tax in the relevant tax treaty between the United States of America and such other foreign country.
; (rxvi) No power true, correct and complete copies of attorney granted all income and sales Tax Returns filed by any of or with respect to NEC for the Stewardship Entities relating past three years have been furnished or made available to Taxes is currently in force.
DataMEG; (sxvii) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would NEC will not be deductible under Section 404 subject to any Taxes for the period ending at the Merger Document Execution Date or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which a Tax Return has not been filed and imposed pursuant to Section 1374 or Section 1375 of the statute Code (or any corresponding provision of limitations for state, local or foreign law); (xviii) no State sales or use tax, State non-recurring intangibles tax, State documentary stamp tax or other State excise tax (or comparable tax imposed by NEC's State of incorporation or State where NEC operates) will be payable by any of the DataMEG Companies merely by virtue of the transactions contemplated in this Agreement; (xix) no interest or penalties relating to Taxes potentially applicable arising as a result of such membership activities during periods ending on or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is before Merger Closing Date have been or will be incurred by NEC or its successors; and (xx) NEC has withheld all Taxes required to treat as being owned be withheld by another Person under it in connection with payments to any persons and remitted such Taxes to the provisions of Section 168(f)(8) of the Code (as appropriate governmental authorities on a timely basis in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Codeaccordance with all applicable laws.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Datameg Corp), Merger Agreement (Datameg Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) has The acquisition of the stock of Euronext N.V. by NYSE Euronext (Holding) N.V. was treated as a taxable transaction for U.S. federal income tax purposes by NYSE Euronext and each of its Subsidiaries. Elections under Section 338(g) of the Code were timely and properly made with respect to Euronext N.V. and each entity owned by Euronext N.V., directly or indirectly at the time of the acquisition of Euronext N.V. by NYSE Euronext (Holding) N.V., that was treated as a corporation for U.S. federal income tax purposes.
(ii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on NYSE Euronext: (A) all Tax Returns that are required to be filed by or with respect to NYSE Euronext or any of its Subsidiaries have been timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file), and all such Tax Returns are true and complete; (B) each Return NYSE Euronext and its Subsidiaries have paid all Taxes required to be filed or sent paid by it to any Taxing Authority in respect of any Taxesthem, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of including any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating required to the withholding of Taxes and the payment thereof in connection with any be withheld from amounts paid or owing to any employee, independent contractor, creditor, shareholder creditor or other third party.
, except with respect to matters for which adequate reserves have been established in accordance with GAAP in the most recent NYSE Euronext annual financial statement, as adjusted for operations in the ordinary course of business since the last date which is covered by such statements; (bC) Each there is no audit, examination, deficiency, refund litigation, proposed adjustment or matter in controversy with respect to any Taxes or Tax Return of NYSE Euronext or any of its Subsidiaries; (D) the Stewardship Entities has made Tax Returns of NYSE Euronext and each of its Subsidiaries have been examined by the applicable Tax Authority (or caused to be made on its behalfthe applicable statutes of limitations for the assessment of income Taxes for such periods have expired) for all estimated Tax payments required to periods through and including December 31, 2008, and no deficiencies were asserted as a result of such examinations which have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and fully paid or accrued as a liability on the financial statements contained in full. No waiver, extension or comparable consent given by the most recent NYSE Euronext Reports; (E) neither NYSE Euronext nor any of the Stewardship Entities regarding the application of the its Subsidiaries have waived any statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreed to any Taxes or any Return extension of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information time with respect to a Tax assessment or deficiency; (F) neither NYSE Euronext nor any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities its Subsidiaries has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying stock intended to qualify for tax-free treatment under Section 355 of the Code that (ior any similar provision of state, local or non-U.S. law) took place during in the two (2) year period ending on years prior to the date of this Agreement Agreement; (G) neither NYSE Euronext nor any of its Subsidiaries has any liability for Taxes of any Person (other than NYSE Euronext or (iiany of its Subsidiaries) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011§1.1502-4 6 (or 1.6011any similar provision of state, local or non-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2U.S. law)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under transferee or successor, by contract or otherwise; (H) there are no liens for Taxes upon any applicable Tax treaty between the United States and such other country.
(r) No power property or assets of attorney granted by NYSE Euronext or any of the Stewardship Entities relating to its Subsidiaries, except for liens for Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner not yet due and payable or for which there is substantial authority, or adequately disclosed such transactions on the Returns as required adequate reserves have been provided in accordance with Section 6662(d)(2)(BGAAP in the most recent NYSE Euronext annual financial statement, and (I) of the Code.
(t) There is no Contractprivate letter rulings, plan technical advice memoranda or arrangement, including this Agreement, pursuant similar agreements or rulings have been entered into or issued by any Tax Authority with respect to which any current NYSE Euronext or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust its Subsidiaries for any period taxable year for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(viii) No property As used in this Agreement, (A) the term “Tax” (including the plural form “Taxes”) includes all U.S. federal, state, local and non-U.S. income, gain, profits, windfall profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986)nature whatsoever, (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) together with all interest, penalties and additions imposed with respect to which such amounts and any interest deductions may in respect of such penalties and additions, (B) the term “Tax Return” includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) filed or required to be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Codefiled with a Tax Authority relating to Taxes, and none (C) the term “Tax Authority” includes any Governmental Entity responsible for the assessment, collection or enforcement of Laws relating to Taxes (including the interest on IRS and any such indebtedness will be disallowed as a deduction under any other provision of the Codesimilar state, local or non-U.S. revenue agency).
Appears in 2 contracts
Samples: Merger Agreement (Intercontinentalexchange Inc), Merger Agreement (Nasdaq Omx Group, Inc.)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 4.8 Taiyu:
(i) has timely paid or caused to be paid all material Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(ii) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, each of which was correctly completed Taiyu were complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, respects; and
(iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eiv) No deficiency for has not been notified since January 1, 2006 by any Governmental Body that any material issues have been raised (and no such issues are currently pending) by any Governmental Body in connection with any Tax Return filed by or on behalf of Taiyu; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Taiyu; no Tax liens have been filed against Taiyu or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.Taiyu;
(fv) To has made full and adequate accrual (A) on the Knowledge Taiyu Balance Sheet, and the books and records of Stewardship, no additional Taiyu for all income taxes currently due and all accrued Taxes will be assessed against any of the Stewardship Entities not yet due and payable by Taiyu for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Taiyu Balance Sheet Date, and (B) on the estimated reserves books and records of Taiyu for such all Taxes established payable by Taiyu for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Taiyu Balance Sheet Date;
(vi) has not incurred any liability for Taxes from and after the Taiyu Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
(vii) has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees); and
(viii) does not have any liability in respect of any Tax sharing agreement with any Person;
(b) No member of the Stewardship Entities.Taiyu has incurred any liability to make any payments either alone or in conjunction with any other payments that would constitute a "parachute payment" within the meaning of Section 280G of the Code (or any corresponding provision of state local or foreign Applicable Law related to Taxes);
(gc) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to No claim has been made within the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the last three years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes taxing authority in a jurisdiction where it in which Taiyu does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Taiyu is or may be subject to taxation by that jurisdiction.;
(id) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the The consummation of the transactions contemplated by this Agreement Share Exchange will not be a factor causing payments trigger the realization or recognition of intercompany gain or income to be made by any of the Stewardship Entities Taiyu or any other Person that Affiliate of Taiyu under the Federal consolidated return regulations with respect to Federal, state or local taxes; and
(e) Taiyu is not currently, nor has it been at any time during the previous five years, a "U.S. real property holding corporation" and, therefore, the Shares are not deductible ("U.S. real property interests," as such terms are defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Share Exchange Agreement (Beijing YSKN Machinery & Electronic Equipment Co., Ltd.), Share Exchange Agreement (Pacific Goldrim Resources, Inc.)
Tax Matters. Except as set forth on Schedule 3.08:
(a) Each of the Stewardship Entities (i) has Acquired Companies have timely filed or has had timely filed on its behalf (taking into account any extension of time within which to fileextensions) each Return all Tax Returns that were required to be filed by or sent with respect to them, and all such Tax Returns were true and complete in all material respects and were prepared in material compliance with all applicable Laws. Each of the Acquired Companies have timely and properly paid, or caused to be timely and properly paid, all Taxes due and payable (whether or not shown on any Tax Return) by it them. Each of the Acquired Companies have timely and properly withheld all material Taxes from payments to any Taxing Authority in employees, agents, contractors, nonresidents, equity interest holders, or other third parties required by applicable law to be withheld by them and timely and properly remitted such amounts to the appropriate Governmental Bodies, and all IRS Forms W-2 and 1099 required with respect of any Taxes, each of which was correctly thereto have been properly completed in all material respects and accurately reflected timely filed (taking into account any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partyextensions).
(b) Each There are no material deficiencies for any Taxes that have been asserted in writing against any of the Stewardship Entities has made (or caused to be made on its behalf) Acquired Companies that remain unpaid, and all estimated material Tax payments required to deficiencies that have been made to avoid claimed, proposed, or asserted in writing by any underpayment penaltiesGovernmental Body against any of the Acquired Companies have been fully paid or finally settled.
(c) There are no Encumbrances Liens for Taxes upon on any assets of any of the Stewardship Entities, Acquired Companies except for Permitted EncumbrancesLiens.
(d) None No unresolved claim has been made during the past three (3) years in writing by any Governmental Body in a jurisdiction where the Acquired Companies do not file Tax Returns that any of the Stewardship Entities has requested any extension of time within which Acquired Companies may be subject to file any Return, which Return has not since been filedTax in that jurisdiction.
(e) No deficiency None of the Acquired Companies is party to any contractual or other obligation or arrangement relating to Tax sharing, Tax gross-up (including for any Taxes has been proposed, asserted Tax assessed pursuant to Section 4999 or assessed against any 409A of the Stewardship Entities Code) or Tax allocation (except for contracts entered into in the ordinary course of business that has do not been resolved and paid in fullprimarily relate to Taxes). No waiver, extension or comparable consent given by any None of the Stewardship Entities regarding Acquired Companies has any liability for the application Taxes of the statute of limitations with respect to any Taxes other Person under Treasury Regulations section 1.1502-6 (or any Return is outstandingsimilar provision of state, nor is any request for any such waiver local or consent pending. Except as set forth on Schedule 4.20(eforeign law), there has been no as a transferee or successor, or by contract (except for contracts entered into in the ordinary course of business that do not primarily relate to Taxes).
(f) No material Tax audit audits or other administrative proceeding or court proceeding judicial Tax proceedings are in progress with regard to any Taxes or any Return of any Tax Returns of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship EntitiesAcquired Companies. None of the Stewardship Entities Acquired Companies has entered into received from any Governmental Body any (i) written notice indicating an intent to open a closing material audit or other material review with respect to Taxes, (ii) written request for information related to material Tax matters, or (iii) written notice of deficiency or proposed adjustment for any material amount of Tax and except in respect of extensions of time to file a Tax Return. None of the Acquired Companies has waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency that, in either case, remains in effect. Seller has made available to Buyer on the Data Site complete copies of all material income Tax Returns as filed, examination reports and statements of deficiencies assessed against or agreed to by the Company or any of the Acquired Companies filed or received since January 1, 2010. For purposes of this Section 3.08(f), Seller acknowledges and agrees that all matters relating to federal income taxes shall be deemed to be material.
(g) The aggregate unpaid Taxes the Acquired Companies (a) did not, as of the date of the Reference Balance Sheet, materially exceed the reserve for Tax liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Reference Balance Sheet and (b) will not materially exceed that reserve as adjusted for the passage of time through the end of the Closing Date in accordance with the past custom and practice of the Acquired Companies in preparing its financial statements.
(h) None of the Acquired Companies has requested or received a ruling from any Governmental Body or signed any binding agreement with any Governmental Body that, in each case, might impact the amount of Tax due from the Acquired Companies after the Closing Date. None of the Acquired Companies is a beneficiary of any material Tax incentive, Tax rebate or similar arrangement or agreement with any Governmental Body.
(i) None of the Acquired Companies is required to make any adjustment pursuant to Section 7121 of the Code section 481(a) (or any precedent provision) or any similar provision under of state, local or foreign tax law by reason of any other Lawchange in accounting methods, and there is no application pending with any Governmental Body requesting permission for any change in any of its accounting methods for Tax purposes.
(fj) To None of the Knowledge of Stewardship, no additional Taxes Acquired Companies will be assessed against required to include any item of taxable income or exclude any item of deduction or loss from taxable income for any taxable period (or any portion thereof) ending after the date hereof as a result of (i) any “closing agreement” as described in Code section 7121 (or any corresponding or similar provision of state, local or foreign Tax law) executed on behalf of the Stewardship Entities Acquired Companies on or prior to the Closing, (ii) any installment sale or open transaction disposition made by the Acquired Companies on or prior to the Closing, (iii) any prepaid amount received by the Acquired Companies on or prior to the Closing, (iv) any election under Code section 108(i) (or any corresponding or similar provision of state, local or foreign Tax law) made by the Acquired Companies on or prior to Closing or (v) any change in method of accounting for any Tax a taxable period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established Closing made by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims Acquired Companies or disputes concerning the Liability for Taxes of any as a result of the Stewardship Entitiestransactions contemplated by this Agreement.
(gk) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies None of the Returns Acquired Companies has participated in any “listed transaction” within the meaning of each Treasury Regulations section 1.6011-4(b). None of Holdings, the Stewardship Entities, as filed with the Internal Revenue Service and all state Company or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities their Subsidiaries is a party to any Contract agreement, contract, arrangement or plan that has resulted or would reasonably be expected to result, separately or in the aggregate, in the payment of any “excess parachute paymentspayment” within the meaning of Section Code section 280G of the Code, and the consummation of in connection with the transactions contemplated by this Agreement will not be a factor causing payments hereby (including any payment required to be made by any of in connection with the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pendingtransactions contemplated hereby).
(l) Except as set forth on Schedule 4.20(l), none None of the Stewardship Entities is a party to any Tax allocation, sharing, indemnityAcquired Companies has distributed stock of another Person, or reimbursement agreement has had its stock distributed to another Person, in a transaction that was purported or arrangement intended to be governed in whole or in part by Code sections 355 or 361(c) within the past two (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes)2) years.
(m) Neither Stewardship Since January 1, 2007, neither Holdings nor Stewardship Bank has been any Specified Entity Restricted Owner has, during any continuous three year period, experienced a United States real property holding corporation within more than fifty percent (50%) change in its direct equity ownership. The parties agree that the meaning of Section 897(c)(2) of the Code during the applicable period specified Seller shall have no indemnification obligation or other liability in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes respect of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee attributes of any of the Stewardship Entities would be entitled to receive any payment as a result Acquired Companies. This Section 3.08 and Section 3.05(m) constitute the sole and exclusive representation or warranty of Holdings, the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture Company or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expiredAcquired Companies relating to Tax matters.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Stanadyne Corp), Stock Purchase Agreement (Clarcor Inc.)
Tax Matters. Except as would not reasonably be expected to be material to the Acquired Assets and the Business, taken as a whole:
(a) Each of the Stewardship Entities Seller (ior its applicable Affiliate) has prepared (or caused to be prepared) and timely filed or has had timely filed on its behalf (taking into account any extension valid extensions of time within which to file) each Return all material Tax Returns with respect to the Acquired Assets required to be filed or sent by it (taking into account valid extensions of time within which to any Taxing Authority in respect of any Taxesfile), each of which was correctly completed and all such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate in all material respects and accurately reflected any were prepared in compliance in all material Liability for respects with applicable Law.
(b) All material Taxes of with respect to the relevant Stewardship EntityAcquired Assets owed by a Seller, and any Affiliate of such entity, covered by such Return, that are due (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iiiany Tax Return) established on the books of account of the Stewardship Entities, have been timely paid or have been adequately reserved against in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesGAAP.
(c) There are no Encumbrances for Taxes upon any assets of on any of the Stewardship Entities, except Acquired Assets other than Permitted Encumbrances.
(d) None of the Stewardship Entities Sellers has requested waived any statute of limitations in respect of material Taxes with respect to the Acquired Assets or agreed to any extension of time within which with respect to an assessment or deficiency for material Taxes with respect to the Acquired Assets (in each case, other than pursuant to extensions of time or waivers to file any Return, which Return has not since been filedTax Returns obtained in the Ordinary Course or waivers or extensions that have expired).
(e) No deficiency for any Taxes Since January 1, 2020, no claim has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid made in full. No waiver, extension or comparable consent given writing by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any a Taxing Authority regarding in a jurisdiction where any such Seller or its Affiliate does not file Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns Acquired Assets that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it Seller is or may be subject to taxation by that jurisdictionjurisdiction with respect to the Acquired Assets that has not otherwise been fully resolved.
(if) Except as set forth on Schedule 4.20(i), none of Each Seller (or its applicable Affiliate) has withheld and paid to the Stewardship Entities is a party applicable Taxing Authority all Taxes required to any Contract that would result, separately have been withheld and timely paid with respect to the Acquired Assets or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the CodeTransferred Employees, and such amounts to the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Codeappropriate Taxing Authority.
(jg) No federal, state, local, or non-U.S. Tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to any Seller with respect to the Acquired Assets. None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude Sellers has received from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingfederal, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local local, or foreign non-U.S. taxing authority (including jurisdictions where Seller has not filed Tax Law.
Returns) any (ki) No closing agreementswritten notice indicating an intent to open an audit or other review (since January 1, private letter rulings 2020), or similar agreements (ii) written notice of deficiency or rulings have been entered into proposed adjustment for any amount of Tax proposed, asserted, or issued assessed by any Taxing Authority against Seller that has not been fully resolved, in each case, with respect to the Acquired Assets.
(h) Notwithstanding anything in this Agreement to the contrary, the representations and warranties in this Section 3.13 shall constitute the sole representations and warranties in this Agreement with respect to Taxes and no representation or warranty set forth in this Section 3.13 shall be deemed to apply directly or indirectly with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements Seller Combined Tax Return. No representation or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities warranty is a party made with respect to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust attribute for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expiredPost-Closing Tax Period.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Rite Aid Corp)
Tax Matters. (a) Each of Except as would not, individually or in the Stewardship Entities aggregate, reasonably be expected to have a Material Adverse Effect on Northgate:
(i) each of Northgate and the Northgate Subsidiaries has duly and timely made or prepared all Tax Returns required to be made or prepared by it, has duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects with the appropriate Governmental Entity and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, such Tax Returns are complete and any Affiliate of such entity, covered by such Return, correct;
(ii) each of Northgate and the Northgate Subsidiaries has: (A) duly and timely and properly paid (or had paid on its behalf) all Taxes due and payable by it; (B) duly and timely withheld all Taxes and other amounts required by Laws to be withheld by it and has duly and timely remitted to the appropriate Governmental Entity such Taxes and other amounts required by Laws to be remitted by it; and (C) duly and timely collected all amounts on account of sales or transfer taxes, including goods and services, harmonized sales, sales, value added, federal, provincial, state or territorial sales taxes, required by Laws to be collected by it and has duly and timely remitted to the appropriate Governmental Entity any such amounts required by Laws to be remitted by it;
(iii) the charges, accruals and reserves for all Tax periods Taxes reflected on the Northgate Financial Statements (whether or portions thereof not due and whether or not shown on such Returns, (iii) established on the books of account any of the Stewardship EntitiesTax Returns but excluding any provision for deferred income taxes) are, in accordance with GAAP and consistent with past practicesthe opinion of Northgate, adequate reserves under Canadian GAAP or IFRS, as applicable, to cover Taxes with respect to Northgate and the Northgate Subsidiaries for the payment periods covered thereby;
(iv) there are no investigations, audits or Claims now pending or to the knowledge of Northgate, threatened against any of Northgate or the Northgate Subsidiaries in respect of any Taxes not then due and payable and (iv) complied in all material respects there are no matters under discussion, audit or appeal with all applicable Laws any Governmental Entity relating to Taxes;
(v) no waiver of any statutory limitation period with respect to Taxes has been given or requested with respect to Northgate or any of the withholding Northgate Subsidiaries;
(vi) none of Northgate and the Northgate Subsidiaries has entered into any agreement or other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the Effective Date;
(vii) none of Northgate and the payment thereof in connection with any amounts paid Northgate Subsidiaries has acquired property from a non-arm’s length Person, within the meaning of the Tax Act: (A) for consideration the value of which is less than the fair market value of the property; or owing to any employee, independent contractor, creditor, shareholder or other third party.(B) as a contribution of capital for which no shares were issued by the acquirer of the property;
(bviii) Each for the purposes of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid Act and any underpayment penalties.other relevant Tax purposes:
(cA) There Northgate is resident in Canada; and
(B) each of the Northgate Subsidiaries is resident in the jurisdiction in which it was formed, and is not resident in any other country;
(ix) there are no Encumbrances for Taxes upon any properties or assets of Northgate or any of the Stewardship Entities, except Permitted Encumbrances.Northgate Subsidiaries (other than Encumbrances relating to Taxes not yet due and payable and for which adequate reserves have been recorded on the most recent balance sheet included in the Northgate Financial Statements);
(dx) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent Northgate was to the best of its knowledge, not a PFIC for its taxable year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of 2010 and expects that it will not be a PFIC for the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof taxable year ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns 2011; and
(xi) no amount that have been audited and indicates those Returns that currently are may be received (whether in cash or property or the subject vesting of audit. True and complete copies of the Returns of each of the Stewardship Entitiesproperty), as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge a result of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will Agreement, by any employee or other service provider of Northgate or a Northgate Subsidiary under any Northgate Benefit Plan or otherwise would not be a factor causing payments to be made deductible by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application reason of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (Code or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party subject to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of an excise tax under Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) 4999 of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Arrangement Agreement (AuRico Gold Inc.), Arrangement Agreement (Northgate Minerals CORP)
Tax Matters. (a) Each of Except as set forth in the Stewardship Entities Sunrise Financial Statements, the Sunrise Disclosure Letter, or the STC SEC Documents, (i) has Sunrise and each of its subsidiaries have timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return with the appropriate taxing authorities all material Tax Returns required to be filed through the date hereof and will timely file any such material Tax Returns required to be filed on or sent by it prior to the Closing Date (except those under valid extension) and all such Tax Returns are and will be true and correct in all material respects, (ii) all Taxes of Sunrise and each of its subsidiaries shown to be due on the Tax Returns described in clause (i) above have been or will be timely paid or adequately reserved for in accordance with GAAP (except to the extent such Taxes are being contested in good faith), (iii) no material deficiencies for any Taxing Authority Taxes have been proposed, asserted, or assessed against Sunrise or any of its subsidiaries that have not been fully paid or adequately provided for in the appropriate financial statements of Sunrise and its subsidiaries, and no power of attorney in respect of any TaxesTaxes has been executed or filed with any taxing authority and no material issues relating to Taxes have been raised in writing by any Governmental Entity during any presently pending audit or examination, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) Sunrise and its subsidiaries are not now subject to audit by any taxing authority and no waivers of statutes of limitation in respect of the Tax Returns have been given by or requested in writing from Sunrise or any of its subsidiaries, (v) there are no material liens for Taxes (other than for Taxes not yet due and payable) on any assets of Sunrise or any of its subsidiaries, (vi) neither Sunrise nor any of its subsidiaries is a party to or bound by (nor will any of them become a party to or bound by) any tax indemnity, tax sharing, tax allocation agreement, or similar agreement, arrangement, or practice in respect of Taxes, (vii) neither Sunrise nor any of its subsidiaries has ever been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code, other than the affiliated group of which Sunrise is the common parent, (viii) neither Sunrise nor any of its subsidiaries has filed a consent pursuant to the collapsible corporation provisions of Section 341(f) of the Code (or any corresponding provision of state or local Law) or agreed to have Section 341(f)(2) of the Code (or any corresponding provisions of state or local Law) apply to any disposition of any asset owned by Sunrise or any of its subsidiaries, as the case may be, (ix) neither Sunrise nor any of its subsidiaries has agreed to make, nor is any required to make, any adjustment under Section 481(a) of the Code or any similar provision of state, local, or foreign Law by reason of a change in accounting method or otherwise, (x) Sunrise and its subsidiaries have complied in all material respects with all applicable Laws relating to the withholding of Taxes Taxes, and the payment thereof in connection with (xi) no property owned by Sunrise or any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
of its subsidiaries (bA) Each of the Stewardship Entities has made (or caused is property required to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat treated as being owned by another Person under person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code (of 1954, as amended and in effect immediately prior to amendment by the enactment of the Tax Reform Act of 1986), ; (iiB) “tax-constitutes "tax exempt use property” " within the meaning of Section 168(h168(h)(l) of the Code Code; or (iiiC) “tax-is tax exempt bond financed property” property within the meaning of Section 168(g)(5168(g) of the Code.
(wb) None of the Indebtedness of any Stewardship Entity constitutes As used herein, (i) “corporate acquisition indebtedness” (as defined "Tax Return" means any return, report, claim for refund, estimate, information return or statement, or other similar document relating to or required to be filed with any Governmental Entity in Section 279(b) respect of the Code) with respect to which Taxes, including any interest deductions may be disallowed under Section 279 of the Code schedule or attachment thereto, and including any amendment thereof, and (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code"Taxes" means all federal, state, local, and none foreign taxes, duties, levies, or similar charges of the any kind, including those measured by or referred to as income, gross receipts, sales, use, ad valorem, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, value added, property, or windfall profits taxes, customs, duties, or similar fees, assessments, or charges of any kind whatsoever, together with any interest on and any such indebtedness will be disallowed as a deduction under penalties, additions to tax, or additional amounts imposed by any other provision of the CodeGovernmental Entity.
Appears in 2 contracts
Samples: Merger Agreement (STC Broadcasting Inc), Agreement and Plan of Merger (Lin Tv Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) has As of the Closing Date, Acquiror will have prepared and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed relating to any and all Taxes concerning or attributable to Acquiror or its operations and such Returns are or will be true and correct.
(ii) As of the Closing Date, Acquiror will have paid all Taxes it is required to pay and will have withheld with respect to its Employees and other persons (and timely paid over to the Stewardship Entities for taxable periods ended on or after December 31appropriate taxing authority) all federal, 2015state and foreign income taxes and social security charges and similar fees, indicates those Returns that have been audited FICA, FUTA and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available other Taxes required to Columbiabe withheld.
(hiii) To the Knowledge of Stewardship, none of the Stewardship Entities Acquiror has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, been delinquent in the payment of any “excess parachute payments” within Tax, nor is there any Tax deficiency outstanding, assessed or, to the meaning Knowledge of Section 280G Acquiror, proposed against Acquiror, nor has Acquiror executed any waiver of any statute of limitations on or extending the Code, and period for the consummation assessment or collection of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the CodeTax.
(jiv) None No audit or other examination of the Stewardship Entities will be required to include any Return of Acquiror is presently in a taxable period ending after the Effective Time taxable income attributable to income that accrued progress, nor has Acquiror been notified in a taxable period prior to the Effective Time but was writing of any request for such an audit or other examination.
(v) Acquiror does not recognized have any liabilities for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingunpaid federal, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax LawTaxes which have not been accrued or reserved in the Acquiror Financials, whether asserted or unasserted, contingent or otherwise, and Acquiror has not incurred any liability for Taxes since August 31, 2005 other than in the ordinary course of business.
(kvi) No closing agreementsAcquiror has made available to Acquiror, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any copies of all foreign, federal, state and local income and all state and local sales and use Returns for the Stewardship Entities which would be binding Company filed for all periods since its inception.
(vii) There are (and immediately following the Effective TimeTime there will be) no liens, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth pledges, charges, claims, restrictions on Schedule 4.20(l)transfer, none of the Stewardship Entities is a party to any Tax allocationmortgages, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements security interests or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes encumbrances of any Person sort (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law)collectively, as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the CodeLiens”) on the relevant Returns in a manner assets of Acquiror relating to or attributable to Taxes other than customary Liens for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the CodeTaxes not yet due and payable.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Digital Music Group, Inc.), Merger Agreement (Digital Music Group, Inc.)
Tax Matters. (ai) Each of I-trax and its Subsidiaries has filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all material respects. All Taxes owed by any of I-trax and its Subsidiaries (whether or not shown on any Tax Return) have been paid. None of I-trax and its Subsidiaries currently is the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account beneficiary of any extension of time within which to file) each Return required to be filed or sent file any Tax Return. No claim has ever been made by it to any Taxing an Authority in respect a jurisdiction where any of I-trax and its Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Security Interests on any of the assets of any Taxes, each of which was correctly completed in all material respects I-trax and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax.
(ii) Each of I-trax and its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder, or other third party.
(biii) Each of the Stewardship Entities has made No manager, director or officer (or caused to be made on its behalfemployee responsible for Tax matters) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities I-trax and its Subsidiaries has requested been informed formally or informally or has any extension of time within which reason to file believe any Return, which Return has not since been filed.
(e) No deficiency Authority may assess additional Taxes for any Taxes has period for which Tax Returns have been proposedfiled or is aware of any state of facts which could give rise to any claim, asserted audit, action, suit, proceeding, or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with investigation which respect to any Taxes or any Return is outstanding, nor is any request Tax for any such waiver or consent pendingwhich I-trax and its Subsidiaries could be liable. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any 3(i)(iii) of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Disclosure Schedule 4.20(g) lists all federal, state, local local, and foreign income Tax Returns filed with respect to the Stewardship Entities any of I-trax and its Subsidiaries for taxable periods ended on or after December 31, 20151997, indicates those Tax Returns that have been audited audited, and indicates those Tax Returns that currently are the subject of audit and includes a summary of the open issues covered by such audit. True I-trax has delivered to WellComm correct and complete copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of I-trax and its Subsidiaries for calendar year 1997 through the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to ColumbiaClosing Date.
(hiv) To the Knowledge None of Stewardship, none I-trax and its Subsidiaries has waived any statute of the Stewardship Entities has limitations in respect of Taxes or agreed to any Liability for Taxes in extension of time with respect to a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is Tax assessment or may be subject to taxation by that jurisdictiondeficiency.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(jv) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the longI-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, trax and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities its Subsidiaries is a party to any Tax allocation, sharing, indemnity, allocation or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) sharing agreement. None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) I-trax and its Subsidiaries has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bankany of I-trax and its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of Lawstate, local, or foreign law), as a transferee or successor, by Contractcontract, or otherwise.
(ovi) None The unpaid Taxes of I-trax and its Subsidiaries (A) did not, as of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within fiscal quarter ended September 30, 2001, exceed the meaning reserve for Tax Liability of Section 355(a)(1)(A) I-trax and its Subsidiaries set forth on the face of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that most recent balance sheet (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged rather than in any transaction notes thereto) and (B) do not exceed that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within reserve as adjusted for the meaning passage of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within time through the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required Closing Date in accordance with Section 6662(d)(2)(B) the past custom and practice of the CodeI-trax and its Subsidiaries in filing their Tax Returns.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (I Trax Inc), Merger Agreement (I Trax Inc)
Tax Matters. (a) Each of Except as set forth on the Stewardship Entities (i) has timely attached Taxes Schedule: the Issuer, each Subsidiary and each Affiliated Group have filed or has had timely filed on its behalf (taking into account any extension of time within all Tax Returns which to file) each Return they are required to be have filed or sent by it under Applicable Law, except where the failure to any Taxing Authority in respect of any Taxes, each of which was correctly completed do so would not have a Material Adverse Effect; all such Tax Returns are complete and correct in all material respects and accurately reflected any have been prepared in compliance with Applicable Law; the Issuer, each Subsidiary and each Affiliated Group in all material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly respects have paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owing by them (whether or not such Taxes are required to be shown on such Returns, (iiia Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating and have withheld and paid over to the withholding of appropriate taxing authority all Taxes and the payment thereof in connection with any which they are required to withhold from amounts paid or owing to any employee, independent contractorstockholder, creditor, shareholder creditor or other third party.
(b) Each of ; neither the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to Issuer, any Subsidiary nor any Affiliated Group have been made to avoid outstanding any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets waiver of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any material Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreement to any Taxes or any Return of any of extend the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information time with respect to any material Tax assessment or deficiency; to the extent required by GAAP, the accrual for Taxes on the Latest Balance Sheet would be adequate to pay all Tax liabilities of the Issuer and its Subsidiaries if their current tax year were treated as ending on the date of the Latest Balance Sheet (excluding any amount recorded which is attributable solely to timing differences between book and Tax income); since the date of the Latest Balance Sheet, neither the Issuer nor any of its Subsidiaries have incurred any material liability for Taxes other than in the ordinary course of business; the federal income Tax Returns of any the Issuer and its Subsidiaries have been audited and closed for all tax years through 1998; to the knowledge of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code Issuer or any similar provision under any other Law.
(f) To the Knowledge of Stewardshipits Subsidiaries, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardshipforeign, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, state or local and foreign income Returns filed tax audits or administrative or judicial proceedings are pending or being conducted with respect to the Stewardship Entities for taxable periods ended on Issuer, any Subsidiary or after December 31any Affiliated Group; except with respect to such audits or proceedings, 2015, indicates those Returns that have been audited and indicates those Returns that currently are to the subject of audit. True and complete copies knowledge of the Returns of each of the Stewardship EntitiesIssuer or its Subsidiaries, as filed with the Internal Revenue Service and all no information related to Tax matters has been requested by any foreign, federal, state or local taxing authority and no written notice indicating an intent to open an audit or other review has been received by the Issuer from any foreign, federal, state or local taxing authority; and there are no material unresolved questions or claims raised by any such taxing authority concerning the Issuer's, any Subsidiary's or any Affiliated Group Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbialiability.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(ib) Except as set forth on Schedule 4.20(i)the Taxes Schedule, none neither the Issuer nor any of its Subsidiaries has made an election under ss.341(f) of the Stewardship Entities Internal Revenue Code of 1986, as amended. Neither the Issuer nor any Subsidiary is a party to any Contract that would result, separately or in liable for the aggregate, in the payment Taxes of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other another Person that are is not deductible a Subsidiary in a material amount under (in whole or in parta) as a result of the application of Section 280G of the CodeTreas. Reg. ss.
1. 1502-6 (j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(llaw), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(mb) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, (c) by Contract, contract or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement indemnity or (iid) could otherwise constitute part by operation of Applicable Law. Neither the Issuer nor any Subsidiary is a “plan” party to any tax sharing agreement except as a member of an Affiliated Group. Neither the Issuer nor any Subsidiary has made any payments, is obligated to make payments or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject a party to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions an agreement that could give rise obligate it to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which make any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement payments that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.IRC ss.280G.
Appears in 2 contracts
Samples: Securities Purchase Agreement (United Shipping & Technology Inc), Securities Purchase Agreement (United Shipping & Technology Inc)
Tax Matters. Except as would not, individually or in the aggregate, constitute an MLP Material Adverse Effect:
(a) Each each of the Stewardship Entities (i) MLP Parties and the MLP Subsidiaries has timely filed or has had timely filed on its behalf when due (taking into account extensions of time for filing) all Tax Returns required to be filed by it;
(b) all Taxes owed by the MLP Parties and the MLP Subsidiaries (whether or not shown on any Tax Return) have been duly and timely paid in full;
(c) there is no Proceeding now pending against any of the MLP Parties or the MLP Subsidiaries in respect of any Tax or Tax Return, nor has any written adjustment with respect to a Tax Return or written claim for additional Tax been received by any MLP Party or its Subsidiaries that is still pending;
(d) no written claim has been made by any Tax authority in a jurisdiction where any of the MLP Parties or the MLP Subsidiaries does not currently file a Tax Return that it is or may be subject to any material Tax in such jurisdiction, nor has any such assertion been threatened or proposed in writing and received by any MLP Party or its Subsidiaries;
(e) except as set forth in Section 4.14(e) of the MLP Disclosure Schedule, none of the MLP Parties or the MLP Subsidiaries has any outstanding request for an extension of time within which to filepay Taxes or file Tax Returns;
(f) there is no outstanding waiver or extension of any applicable statute of limitations for the assessment or collection of Taxes due from any of the MLP Parties or the MLP Subsidiaries;
(g) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, MLP Parties and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) MLP Subsidiaries has complied in all material respects with all applicable Laws Law relating to the payment and withholding of Taxes and the payment thereof has duly and timely withheld and paid all material Taxes required to be withheld in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder independent contractor or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.;
(h) To each of the Knowledge MLP Parties and the MLP Subsidiaries that is classified as a partnership for U.S. federal tax purposes has in effect an election under Section 754 of Stewardshipthe Code;
(i) except as set forth in Section 4.14(i) of the MLP Disclosure Schedule, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of MLP Parties or the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) MLP Subsidiaries has been a member of an affiliated Affiliated group filing a consolidated federal income Tax Return (other than a group and none of the common parent of which was Stewardship) MLP Parties or (ii) the MLP Subsidiaries has any Liability liability for the Taxes of any Person (other than Stewardship an MLP Party or Stewardship Bankthe MLP Subsidiaries) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee or successor, by Contract, contract or otherwise.;
(oj) None in each tax year since the formation of MLP up to and including the current tax year, at least 90% of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning gross income of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities MLP has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for income which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use propertyqualifying income” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(57704(d) of the Code.; and
(wk) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Codeexcept for Crestwood Midstream Finance Corporation, and none of the interest on any such indebtedness will be disallowed MLP Group Entities is treated as a deduction under any other provision of the Codecorporation for U.S. federal tax purposes.
Appears in 2 contracts
Samples: Merger Agreement (Inergy Midstream, L.P.), Merger Agreement (Inergy L P)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e3.20 hereto:
(a) all Tax Returns (as defined herein) required to be filed with respect to the Companies, or any of their income, properties, franchises or operations have, in each case, been timely filed (after giving effect to any extensions), there ; each such Tax Return has been no Tax audit or other administrative proceeding or court proceeding prepared in compliance with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any all applicable laws and regulations; and all such Tax audit Returns are true, complete and accurate in all respects;
(b) all Taxes (as defined herein) due and payable by or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns Companies have been paid;
(c) with respect to each taxable period of any of the Stewardship Entities. None Companies, other than taxable periods ending December 31, 2001, 2002 and 2003, either such taxable period has been audited by the relevant taxing authority or the time for assessing or collecting Taxes with respect to each such taxable period has closed and each taxable period is not subject to review by any relevant taxing authority;
(d) no deficiency or proposed adjustment which has not been settled or otherwise resolved for any amount of Taxes has been asserted or assessed or reassessed in writing by any taxing authority against any of the Stewardship Entities has entered into a closing agreement pursuant Companies;
(e) there is no action, suit, taxing authority proceeding, or audit or claim for refund regarding Taxes now in progress, pending or, to Section 7121 the knowledge of the Code Companies, Seller or Landlord threatened against or with respect to any similar provision under any other Law.of the Companies;
(f) To the Knowledge of Stewardship, there are no additional Liens for Taxes will be assessed against (other than for current Taxes not yet due and payable) on any of the Stewardship Entities Assets of any of the Companies;
(g) none of the Companies:
(i) has any pending consent to extend the time in which any Taxes may be assessed or collected by any taxing authority;
(ii) has requested or been granted an extension of the time for filing any Tax Return to a date later than the Closing;
(iii) will be required (A) as a result of a change in method of accounting for a taxable period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of StewardshipClosing, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of to include any adjustment under Section 481(c) of the Stewardship Entities.
Code (g) Schedule 4.20(g) lists all federalor any corresponding Canadian, state, provincial, local and or foreign law) in taxable income Returns filed with respect to for any taxable period (or portion thereof) beginning after the Stewardship Entities for taxable periods ended on Closing or after December 31(B) as a result of any closing agreement, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies as described in Section 7121 of the Returns Code (or any corresponding provision of each Canadian, state, provincial, local or foreign law), to include any item of income or exclude any item of deduction from any taxable period (or portion thereof) beginning after the Closing;
(iv) is or has been (or is required to be) a member of an affiliated group (as defined in Section 1504 of the Stewardship EntitiesCode) or has filed or been included in a combined, as filed with the Internal Revenue Service and all state consolidated or local unitary income Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.Return;
(hv) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to or bound by any Contract that would result, separately tax allocation or in the aggregate, in the payment tax sharing agreement or has any current or potential liability for taxes of any “excess parachute payments” within other Person under Treasury Regulation Section 1.1502-6 (or any corresponding provision of Canadian, state, provincial, local or foreign tax law), as a transferee or successor, by contract or otherwise;
(vi) has made any payment and none is or will become obligated (under any contract entered into on or before the meaning of Closing) to make any payments that will be non-deductible under Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities Code (or any other Person that are not deductible (in whole or in part) as a result corresponding provision of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingCanadian, the completed contract method of accountingstate, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of stateprovincial, local or foreign Tax Law.law);
(kvii) No closing agreements, private letter rulings is or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States State real property holding corporation within the meaning of Section 897(c)(2) of the Code (or any corresponding provision of Canadian, state, provincial, local or foreign law) during the applicable period specified in Section 897(c)(1)(A)(ii897(c)(1)(a)(ii) of the Code.Code (or any corresponding provision of Canadian, state, provincial, local or foreign law);
(nviii) None has ever been subject to a written claim made by a taxing authority in a jurisdiction in which the Companies do not file Tax Returns that any of the Stewardship Entities Companies is or may be subject to Taxes assessed by such jurisdiction; and
(i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (iiix) has any Liability for the Taxes of permanent establishment in any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law)foreign country, as a transferee or successor, by Contract, or otherwise.
(o) None of defined in the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate relevant tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States of America and such other foreign country, except for Parent.
(rh) No power true, correct and complete copies of attorney granted all income and sales Tax Returns filed by any of or with respect to the Stewardship Entities relating Companies for the past three years have been furnished or made available to Taxes is currently in force.Purchaser;
(si) Each of the Stewardship Entities reported all transactions no facts exist that could would give rise to an underpayment obligation of any Company to pay any Taxes for the period ending at the Closing or for any period for which a Tax (within Return has not been filed, other than those Taxes reflected or accrued on the meaning of Section 6662 books and records of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.Companies;
(tj) There is no Contractsales or use tax will be payable by the Companies, plan Purchaser or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment transferee as a result of the transactions contemplated hereby, and there will be no non-recurring intangible tax, documentary stamp tax or other excise tax (or comparable tax imposed by this Agreement that would not be deductible under Section 404 or 162(many governmental entity) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.this transaction;
(vk) No property no power of attorney currently in force with respect to tax matters has been executed that could affect any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code Companies in any period beginning after the Closing;
(as in effect prior to amendment by the Tax Reform Act of 1986), (iil) “tax-exempt use property” Seller is not a foreign person within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) 1445 of the Code.; and
(wm) None there are no circumstances existing which could result in the application of any of sections 78 to 80.04 of the Indebtedness of Income Tax Act (Canada) or any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) equivalent provincial tax legislation to any of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the CodeCompanies.
Appears in 2 contracts
Samples: Acquisition Agreement (Packaging Dynamics Corp), Acquisition Agreement (Packaging Dynamics Corp)
Tax Matters. (a) Each of the Stewardship Entities Except as has been set forth in writing by NEWBRIDGE to ALCATEL in a form acceptable to ALCATEL:
(i) has timely filed NEWBRIDGE and each of the NEWBRIDGE Material Subsidiaries have filed, or has had timely filed on its behalf (taking into account any extension of time within which caused to file) each Return be filed, all Tax Returns required to be filed by them (all of which returns were correct and complete in all material respects), except those in respect of which the failure to file which would not have a Material Adverse Effect on NEWBRIDGE, and have paid, or sent caused to be paid, all material amounts of Taxes shown to be due and payable thereon, and NEWBRIDGE's most recently published financial statements contain an adequate provision in accordance with Canadian generally accepted accounting principles for all material amounts of Taxes payable in respect of each period covered by it such financial statements and all prior periods to the extent such Taxes have not been paid, whether or not due and whether or not shown as being due on any Taxing Authority Tax Returns. NEWBRIDGE and each of the NEWBRIDGE Material Subsidiaries have made adequate provision in accordance with Canadian generally accepted accounting principles in their books and records for any material amounts of Taxes accruing in respect of any Taxes, each of accounting period which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of has ended subsequent to the relevant Stewardship Entity, and any Affiliate of such entity, period covered by such Return, financial statements.
(ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of Neither NEWBRIDGE nor any Taxes not then due and payable and (iv) complied in all NEWBRIDGE Material Subsidiary has received any written notification that any issues involving a material respects with all applicable Laws relating to the withholding amount of Taxes have been raised (and are currently pending) by Canada Customs and Revenue Agency, the payment thereof United States Internal Revenue Service or any other taxing authority, including, without limitation, any sales tax authority, in connection with any amounts paid of the Tax Returns filed or owing required to be filed, and no waivers of statutes of limitations, or objections to any employeeassessments or reassessments, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been given or requested or made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes NEWBRIDGE or any NEWBRIDGE Material Subsidiary. All liability of NEWBRIDGE and the NEWBRIDGE Material Subsidiaries for income taxes has been assessed for all fiscal years up to and including the fiscal year ended April 30, 1990. Neither NEWBRIDGE nor any NEWBRIDGE Material Subsidiary has received any written notice from any taxing authority to the effect that any Tax Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entitiesbeing examined. To the Knowledge best of Stewardshipthe knowledge of NEWBRIDGE, there are no unresolved questions, claims or disputes concerning the Liability proposed in writing (but unassessed) additional Taxes involving a material amount of Taxes and none has been asserted in writing. No Tax liens have been filed for material amounts of Taxes other than for Taxes of not yet due and payable. Neither NEWBRIDGE nor any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities NEWBRIDGE Material Subsidiaries is a party to any Tax allocation, sharing, indemnity, sharing or reimbursement other similar agreement or arrangement of any nature with any other person (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (NEWBRIDGE or any similar provision of Law), as a transferee its subsidiaries) pursuant to which NEWBRIDGE or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently NEWBRIDGE Material Subsidiaries has or could have any material liabilities in force.
(s) Each respect of Taxes, other than any liability arising under an agreement providing for the Stewardship Entities reported all transactions that could give rise to an underpayment sale or other disposition of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, property by NEWBRIDGE or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive NEWBRIDGE Material Subsidiaries. Neither NEWBRIDGE nor any payment as NEWBRIDGE Material Subsidiary has received a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member refund of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codeit was not entitled.
Appears in 2 contracts
Samples: Merger Agreement (Alcatel), Merger Agreement (Newbridge Networks Corp)
Tax Matters. (a) Each For purposes of this Section 4.14 and Article X, HBI shall be deemed to include Howe-Xxxxx Xxxernational, Inc. and the HBI Subsidiaries except that, if a breach of any of the Stewardship Entities representations or warranties contained in this Section 4.14 by any person or entity owned directly or indirectly by WGI or any predecessor thereof (iother than Howe-Xxxxx Xxxernational, Inc. or an HBI Subsidiary) has timely filed causes Buyer, HBI or has had timely filed on its behalf (taking into account any extension of time within which HBI Subsidiary to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability incur a liability for Taxes that the Buyer, HBI or any HBI Subsidiary would not have incurred but for such breach, then the term HBI shall be deemed to also include (for purposes of the relevant Stewardship Entity, Section 4.14 and Article X) any person or entity owned directly or indirectly by WGI and any Affiliate of such entitypredecessor thereof, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance but only with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating respect to the withholding of Taxes and the payment thereof representation or warranty in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partySection 4.14 that is so breached.
(b) Each of HBI has timely filed (and prior to the Stewardship Entities has made Closing Date will timely file) true, correct and complete Tax Returns, all prepared in accordance with applicable Governmental Requirements, for all years and periods (and portions thereof), for all jurisdictions (whether federal, state, local or foreign) in which any such Tax Returns are required to be filed by any applicable Governmental Requirement on or prior to the Closing Date. All Taxes shown as due and payable on such Tax Returns have been paid (or caused will be paid prior to be made the Closing), and, to the knowledge of Seller, there is no current liability for any Taxes due and payable in connection with any such Tax Returns. All Taxes not yet due and payable attributable to periods ending on its behalf) all estimated Tax payments required to or before the Closing Date will have been made fully accrued on the Closing Date Balance Sheet and adequate reserves have been established therefor. To the knowledge of Seller, there are no unpaid assessments for additional Taxes for any period. Seller knows of no basis for the assessment of any Tax in addition to avoid the amount of Tax that has been paid for any underpayment penaltiesperiod ending on or before the Closing Date. There are no existing liens for Taxes upon any of HBI's assets.
(c) There are no Encumbrances for HBI has collected and withheld all Taxes upon that it has been required to collect or withhold and has timely submitted all such collected and withheld Taxes to the appropriate Taxing Authority. HBI has complied with and is in compliance with all applicable laws, rules and regulations relating to the payment, withholding and information reporting requirements relating to any assets of any of the Stewardship Entities, except Permitted EncumbrancesTaxes required to be collected or withheld.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e4.14, HBI has no (and has not previously had any) permanent establishment in any foreign country and HBI does not engage (and has not previously engaged) in a trade or business within the meaning of the Code relating to the creation of a permanent establishment in any foreign country. Neither the Seller nor HBI is a foreign person within the meaning of Code Section 1445(d). Neither the Code nor any other provision of Governmental Requirements requires Buyer to withhold any portion of the Purchase Price.
(e) Except as set forth in Schedule 4.14, there HBI is not a party to any joint venture, partnership or other arrangement that could be treated as a partnership for federal income Tax purposes.
(f) Neither the IRS nor any other Taxing Authority has been proposed any adjustment or change in accounting methods that has not yet occurred that affects any taxable year ending after the Closing Date.
(g) Except as set forth in Schedule 4.14, no federal, state, local or foreign Tax audit audits or other administrative proceeding proceedings, discussions or court proceeding proceedings are presently pending with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, HBI and no additional Taxes will be assessed issues are being asserted against HBI in connection with any existing audits of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to ColumbiaHBI.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities HBI has no application pending with any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority requesting permission for any changes in such a jurisdiction accounting methods that it is relate to its business or may be subject to taxation by operations and that jurisdictionaffects any taxable year ending after the Closing Date.
(i) Except as set forth on in Schedule 4.20(i)4.14, none of the Stewardship Entities HBI is not and never has been a party to any Contract that would result, separately Tax sharing agreement or in similar arrangement for the aggregate, in the payment sharing of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will Tax liabilities or benefits. HBI has not be a factor causing payments consented to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Code Section 280G of the Code341(f).
(j) None There is no contract or agreement covering any employee or former employee of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (HBI that, individually or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingcollectively, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee payment by HBI of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement amount that would not be deductible by reason of Code Section 280G.
(k) HBI has not participated in any transaction required to be disclosed or registered as a tax shelter under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Purchase Agreement (Wedge Group Inc), Purchase Agreement (Chicago Bridge & Iron Co N V)
Tax Matters. (a) Each of the Stewardship Entities (i) Seller has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all material Tax Returns that it was required to be filed file (separately or sent by it as part of a consolidated, combined or unitary group) with respect to any Taxing Authority in respect of any Taxes, each of which was correctly completed the Acquired Assets or the Business and all such Tax Returns were correct and complete in all material respects respects. With respect to the Acquired Assets and accurately reflected any material Liability for Taxes of the relevant Stewardship EntityBusiness, and any Affiliate of such entity, covered by such Return, (ii) timely and properly Seller has paid (or had paid on its behalf) (i) all Taxes that are shown to be due on any such Tax Returns or pursuant to any assessment received by Seller from any Taxing Authority for any period preceding the Closing Date, and payable for (ii) all Tax periods other Taxes due on or portions thereof before the Closing Date (whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance a Tax Return). All Taxes that Seller is or was required by Law to withhold or collect with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating respect to the withholding of Taxes Acquired Assets and the payment thereof in connection with any amounts Business have been duly withheld or collected and, to the extent required, have been paid or owing will be paid to any employee, independent contractor, creditor, shareholder or other third partythe proper Governmental Entity.
(b) Each of There are no pending, proposed in writing or threatened in writing Proceedings with respect to any Taxes payable by or asserted against Seller related to the Stewardship Entities has made (Acquired Assets or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesthe Business.
(c) There are no Encumbrances for Taxes outstanding agreements or waivers that would extend the statutory period in which a Taxing Authority may assess or collect a Tax that could result in a Lien upon the Acquired Assets or the Business or in liability to any assets Buyer as a transferee of any of or successor to the Stewardship Entities, except Permitted EncumbrancesAcquired Assets or the Business.
(d) None of There are no Liens with respect to Taxes (other than for current Taxes not yet due and payable) upon the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filedAcquired Assets or the Business.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into Acquired Assets constitute a closing agreement pursuant to “United States real property interest” within the meaning of Section 7121 897(c) of the Code or any similar provision under any other LawCode.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against No claim has ever been made in writing by any of the Stewardship Entities for any Taxing Authority in a jurisdiction where Seller does not file Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on Business or after December 31, 2015, indicates those Returns the Acquired Assets that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it Seller is or may be subject to taxation Taxation by that jurisdiction.
(ig) Except as set forth on Schedule 4.20(i), none None of the Stewardship Entities Acquired Assets or Assumed Liabilities includes any interest in a joint venture, alliance, partnership or other arrangement that has been treated as a partnership for Tax purposes.
(h) Seller is not a party to any Contract that would resultTax indemnity, separately Tax allocation or Tax sharing agreement, other than any such agreement entered into in the aggregateOrdinary Course of Business the principal purpose of which is not related to Tax, that could reasonably be expected to result in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by liability for any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) Buyer as a result of the application of Section 280G its acquisition or ownership of the CodeAcquired Assets or the Business.
(i) There are no requests for rulings pending between Seller and any Governmental Entity in respect of any Tax that could result in a Lien upon the Acquired Assets or the Business or in liability to any Buyer as a transferee of or successor to the Acquired Assets or the Business.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (Acquired Assets directly or to exclude from taxable income in a taxable period ending after the Effective Time indirectly secure any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingdebt, the completed contract method of accounting, the longinterest on which is tax-term contract method of accounting, the cash method of accounting, Code exempt under Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii103(a) of the Code.
(nk) None of Seller has collected or self-assessed and remitted to the Stewardship Entities (i) has appropriate Governmental Entity all sales and use or similar Taxes required to have been a member of an affiliated group filing a consolidated Return (other than a group collected or self-assessed with respect to the common parent of which was Stewardship) Acquired Assets and the Business, including any interest and any penalty, addition to tax or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwiseadditional amount.
(ol) None Seller has properly and timely paid to the appropriate Governmental Entities all payroll, unemployment and similar Taxes with respect to the Acquired Assets or the Business due on or before the Closing Date and has complied in all material respects with all information reporting, backup withholding and Tax Return requirements, including the maintenance of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) required records with respect thereto, in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction connection with the transactions contemplated by this Agreementany such amounts.
(pm) None of This Section 2.8 and Section 2.14, and any other representation or warranty to the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 extent such representation or 1.6011-4Twarranty explicitly references Taxes, or has participated in any “confidential corporate tax shelter” (within sets forth the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted only representations by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) Seller with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the CodeTaxes.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement (Ariba Inc)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return material Tax Returns required to be filed by or sent by it with respect to any Taxing Authority in the Acquired Entities has been properly prepared and timely filed, and all such Tax Returns (including information provided therewith or with respect of any Taxesto thereto) are true, each of which was correctly completed complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partyrespects.
(b) Each of the Stewardship Acquired Entities has fully and timely paid all Taxes owed by such company shown as due on any Tax Return, other than Taxes being contested in good faith as described in Section 3.14(b) of the Company Disclosure Letter, and has made (provision adequate to cover any and all Taxes that are not yet due and payable, for all taxable periods, or caused to be made portions thereof, ending on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesor before the date hereof.
(c) There are no Encumbrances outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes upon any assets of due from any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Acquired Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved taxable period and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any no request for any such waiver or consent extension is currently pending. Except as set forth on Schedule 4.20(e).
(d) No audit, there has been no Tax audit examination, investigation or other administrative proceeding by any Governmental Body is pending or court proceeding threatened in writing with regard respect to any Taxes due from or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns Acquired Entities, no Governmental Body has given written notice of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant intention to Section 7121 of the Code assert any deficiency or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no claim for additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Acquired Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have no claim in writing has been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Body in a jurisdiction where it an Acquired Entity does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it is or may be subject to taxation by that jurisdiction, and all deficiencies for Taxes asserted or assessed in writing against the Acquired Entities have been fully and timely paid, settled or properly reflected in the financial statements or other Company SEC Documents.
(e) There are no Encumbrances for Taxes upon the assets or properties of any of the Acquired Entities, except for Permitted Encumbrances.
(f) None of the Acquired Entities has (i) Except as set forth participated in any listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or foreign Tax Law) or (ii) taken any position on Schedule 4.20(i)a Tax Return that could reasonably be expected to result in an “underpayment” of Tax to which Code Section 6662 (or any similar provision of state, none local or foreign Tax Law) applies.
(g) None of the Stewardship Acquired Entities is a party to any Contract that would resultagreement relating to the sharing, separately allocation or in the aggregateindemnification of Taxes, in the payment or any similar agreement, contract or arrangement or has any liability for Taxes of any “excess parachute payments” Person (other than members of the affiliated group, within the meaning of Section 280G 1504(a) of the Code, and filing consolidated federal income Tax Returns of which the consummation Company is the common parent) under Treasury Regulations Section 1.1502-6 or similar provision of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities state, local or any other Person that are not deductible (in whole or in part) foreign Tax Law, as a result of the application of Section 280G of the Codetransferee or successor, by contract, or otherwise.
(jh) Each of the Acquired Entities has withheld (or will withhold) from their respective employees, independent contractors, creditors, stockholders and third parties and timely paid (or will timely pay) to the appropriate Governmental Body proper and accurate amounts in all material respects for all periods ending on or before the Closing Date in compliance with all Tax withholding and remitting provisions of applicable Laws and has each complied in all material respects with all Tax information reporting provisions of all applicable Laws.
(i) None of the Stewardship Acquired Entities will be required to include in a taxable period ending after the Effective Time Closing Date taxable income attributable to income that accrued in a taxable period prior to the Effective Time Closing Date but was not recognized for Tax purposes in such prior taxable period (or to exclude from the calculation of taxable income in a taxable period ending after the Effective Time Closing Date any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective TimeClosing Date) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 of the Code, Section 965(h) of the Code or Code Section 108(i) of the Code or comparable provisions of state, local or foreign Tax Law, any intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code or comparable provisions of state, local or foreign Tax Law, or for any other reason.
(j) Any adjustment of Taxes of any of the Acquired Entities made by the IRS, which adjustment is required to be reported to the appropriate state, local, or foreign Governmental Bodies, has been so reported.
(k) No None of the Acquired Entities has executed or entered into a closing agreementsagreement pursuant to Section 7121 of the Code or any similar provision of state, local or foreign Tax Law, and none of the Acquired Entities has been subject to or been issued any private letter rulings ruling or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any comparable ruling of the Stewardship Entities which would be binding following the Effective Time, and no such agreements IRS or rulings have been applied for by any Stewardship Entity and are currently pendingother Governmental Body.
(l) Except as set forth A true, complete and accurate copy of each U.S. federal and state income Tax Return and each Swedish income Tax Return and each Canadian federal and provincial income Tax Return filed by or on Schedule 4.20(l), none behalf of the Stewardship Acquired Entities is prior to the date of this Agreement with respect to a party Tax period beginning on or after October 1, 2015 has been made available to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes)Parent.
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Acquired Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during in the two (2) year period ending on years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreementhereby.
(pn) Section 3.14(n) of the Company Disclosure Letter sets forth a true and complete list of each Subsidiary of the Company that is a “controlled foreign corporation” as defined in Section 957 of the Code. None of the Stewardship Acquired Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) a “tax-exempt use propertypassive foreign investment company” within the meaning of Section 168(h) 1297 of the Code Code, or (iiiii) “tax-exempt bond financed property” has a permanent establishment (within the meaning of Section 168(g)(5an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the Codecountry in which it is organized.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Datawatch Corp), Merger Agreement (Altair Engineering Inc.)
Tax Matters. (a) The Acquired Corporations have paid or properly reserved for all Taxes, due and payable by any of them for or with respect to all periods up to and including the date hereof (without regard to whether or not such Taxes are or were disputed), whether or not shown on any Tax Return.
(b) Each of the Stewardship Entities (i) Acquired Corporations has timely filed or has had timely filed on its behalf a timely basis (taking into account any extensions of time an Acquired Corporation was granted) all Tax Returns that it was required to file except for Tax Returns for the year which includes the Closing Date. All such Tax Returns were accurate and complete in all material respects. None of the Acquired Corporations is currently the beneficiary of any extension of time within which to file) each Return required file any Tax Return. No claim that has not been resolved has ever been made to an Acquired Corporation by an authority in a jurisdiction where the Acquired Corporations do not file Tax Returns that any one of them is or may be filed or sent subject to taxation by it to that jurisdiction. None of the Acquired Corporations has given any Taxing Authority currently effective waiver of any statute of limitations in respect of Taxes or agreed to any Taxes, each currently effective extension of which was correctly completed in all material respects and accurately reflected time with respect to a Tax assessment or deficiency. There are no security interests on any material Liability for Taxes of the relevant Stewardship Entity, and assets of any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof Acquired Corporations that arose in connection with any failure (or alleged failure) to pay any Tax (other than liens for Taxes not yet due and payable).
(c) The Acquired Corporations have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party.
(b) Each of the Stewardship Entities has made (party except for such withholding or caused payments to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrancesat or before Closing.
(d) None of the Stewardship Entities has requested Acquired Corporations, including any extension director, officer or employee responsible for tax matters of time within the Acquired Corporations is aware of any facts or circumstances which could give rise to file a reasonable expectation that any Return, relevant taxing authority may assess any additional Taxes for any period for which Return has not since Tax Returns have been filed. There is no dispute or claim concerning any liability for Taxes of the Acquired Corporations either (i) claimed or raised by any authority in writing or (ii) as to which such Acquired Corporation has knowledge based upon personal contact with any agent of such authority. Schedule 2.11(d) to the Company Disclosure Schedule sets forth as of the date of this Agreement a complete and accurate list of current open audits of Tax Returns filed by or on behalf of the Acquired Corporations with any Governmental Body.
(e) No deficiency for any The unpaid Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiverAcquired Corporations (i) did not, extension or comparable consent given by any as of the Stewardship Entities regarding the application date of the statute of limitations with respect most recent Company Financial Statements, exceed the reserve for Tax Liability (as opposed to any reserve for deferred Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as established to reflect timing differences between book and Tax income) set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding in the Company Balance Sheet and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with regard to any Taxes or any Return of any the past custom and practice of the Stewardship Entities for any Acquired Corporations in filing their Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities Acquired Corporations is a party to any Tax allocation, sharing, indemnity, allocation or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) sharing agreement. None of the Code during the applicable period specified Acquired Corporations has made any distribution of any “Controlled Corporation” as that term is defined in Section 897(c)(1)(A)(ii355(a)(1) of the Code.
(n) . None of the Stewardship Entities Acquired Corporations (i) has been a member of an “affiliated group group,” as defined in Section 1504(a) of the Code, filing a consolidated federal income Tax Return (other than a an affiliated group the common parent of which was Stewardship) is the Company or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bankany of the Acquired Corporations) under Treasury Regulations Treas. Reg. Section 1.1502-6 (or any similar provision of Lawstate, local, or foreign law), as a transferee or successor, by Contract, contract or otherwise.
(og) None of the Stewardship Entities constitutes either Acquired Corporations has filed a “distributing corporation” or a “controlled corporation” (within the meaning of consent under Section 355(a)(1)(A341(f) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) concerning collapsible corporations. None of the Stewardship Entities has engaged in Acquired Corporations will be required to include any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4Titem of income in, or has participated in exclude any “confidential corporate tax shelter” (within item of deduction from, taxable income for any taxable period or portion thereof ending after the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the transactions contemplated by this Agreement that would not be deductible Closing Date under Section 404 or 162(m) 481 of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within closing agreement as described in Section 7121 of the meaning of Code executed on or prior to the Closing Date, (iii) deferred intercompany gain or any excess loss account described in regulations under Section 168(h) 1502 of the Code or (iiiiv) “tax-exempt bond financed property” installment sale or open transaction disposition made on or prior to the Closing Date.
(h) The Company is not a U.S. real property holding corporation within the meaning of Code Section 168(g)(5) of the Code897(c)(2).
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Rainbow Technologies Inc), Merger Agreement (Safenet Inc)
Tax Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) Each of the Stewardship Entities The Company and its Subsidiaries (i) has have timely filed or has had timely caused to be filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to have been filed by the Company or any of its Subsidiaries, and all such Tax Returns were true, correct and complete, and all such Tax Returns filed on or before December 31, 2005 have been examined by the appropriate taxing authority or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, has expired; (ii) have timely and properly paid or caused to be paid (or had paid on its behalftaking into account any extension of time within which to pay) all Taxes shown as due and payable for all Tax periods or portions thereof whether or not shown on such Tax Returns, ; (iii) have established on the books of account of the Stewardship Entitiesadequate accruals and reserves, in accordance with GAAP GAAP, on the financial statements included in the Company SEC Documents for all Taxes payable by the Company and consistent with past practices, adequate reserves its Subsidiaries for all taxable periods and portions thereof through the payment date of any Taxes not then due and payable such financial statements; and (iv) complied have not received any written notice of any deficiencies for any Tax of the Company or any of its Subsidiaries from any taxing authority for which there are not adequate accruals or reserves on the financial statements included in the Company SEC Documents.
(b) Neither the Company nor any of its Subsidiaries is the subject of any currently ongoing audit or other proceeding with respect to Taxes nor has any audit or other proceeding with respect to Taxes been proposed against any of them in writing, and any deficiencies asserted or assessments made as a result of any audit or other proceeding with respect to Taxes have been paid in full, are being contested in good faith, or adequate accruals or reserves for such deficiencies or assessments have been established. There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Company Permitted Liens. No claim has ever been made in writing by a taxing authority of a jurisdiction where the Company or one of its Subsidiaries has not filed Tax Returns that the Company or such Subsidiary is or may be subject to taxation by that jurisdiction.
(c) Neither the Company nor any of its Subsidiaries is a party to or bound by any written Tax allocation, indemnification, sharing or similar agreement (other than an agreement with the Company or its Subsidiaries), except for agreements entered into in the ordinary course of business. Neither the Company nor any of its Subsidiaries is liable under Section 1.1502-6 of the Treasury regulations promulgated under the Code (or any similar provision of the Tax Laws of any state, local or foreign jurisdiction) for any Tax of any person other than the Company and its Subsidiaries.
(d) The Company and its Subsidiaries have withheld and paid all material respects with all applicable Laws relating Taxes required to the withholding of Taxes have been withheld and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party; such withheld amounts were either timely paid to the appropriate taxing authority or set aside in accounts for such purpose. The Company and each of its Subsidiaries have reported such withheld amounts to the appropriate taxing authority and to each such employee, independent contractor, creditor, stockholder or other third party, as required under Law.
(be) Each Neither the Company nor any of its Subsidiaries was a “distributing corporation” or “controlled corporation” in a transaction intended to qualify under Section 355 of the Stewardship Entities has made (Code within the past two years or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesotherwise as part of a plan that includes the Merger.
(cf) There are no Encumbrances for Taxes upon any assets of Neither the Company nor any of its Subsidiaries has participated in any “reportable transaction” within the Stewardship Entities, except Permitted Encumbrancesmeaning of Section 1.6011-4 of the Treasury regulations promulgated under the Code.
(dg) None The Company has made available to Parent or its legal or accounting representative copies of all U.S. Federal and state income Tax Returns for the Stewardship Entities Company and each of its Subsidiaries filed for all periods including and after the period ended December 31, 2007.
(h) Neither the Company nor any of its Subsidiaries (i) has requested filed any extension of time within which to file any Return, which Return has Tax Returns that have not since been filed.
, except in the ordinary course of business, (eii) No deficiency has entered into any agreement or other arrangement waiving or extending the statute of limitations or the period of assessment or collection of any Taxes, (iii) has granted any power of attorney that is in force with respect to any matters relating to any Taxes, (iv) has applied for a ruling from a taxing authority relating to any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waivergranted or has proposed to enter into an agreement with a taxing authority that is pending or (v) has, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended since December 31, 20152006, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a any “closing agreement pursuant to agreement” as described in Section 7121 of the Code (or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law) or been issued any private letter rulings, technical advice memoranda or similar agreement or rulings by any taxing authority.
(ki) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to Neither the Company nor any of the Stewardship Entities which would be binding following the Effective Timeits Subsidiaries has agreed to, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnityrequested, or reimbursement agreement or arrangement (other than is required to include any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of adjustment under Section 897(c)(2) 481 of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar corresponding provision of applicable state, local or foreign Tax Law), as ) by reason of a transferee or successor, by Contract, change in accounting method or otherwise.
(oj) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) As used in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that this Agreement, (i) took place during the two “Taxes” means any and all domestic or foreign, federal, state, local or other taxes of any kind (2together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted imposed by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangementGovernmental Entity, including this Agreementtaxes on or with respect to income, pursuant to which any current franchises, windfall or former employee other profits, gross receipts, occupation, property, transfer, sales, use, capital stock, payroll, employment, unemployment, social security, workers’ compensation or net worth, and taxes in the nature of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 excise, withholding, ad valorem or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u)value added, none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), and (ii) “tax-exempt use propertyTax Return” within the meaning of Section 168(hmeans any return, report or similar filing (including any elections, notifications, declarations, schedules or attachments thereto, and any amendment thereof) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) required to be filed with respect to which Taxes, including any interest deductions may be disallowed under information return, claim for refund, amended return or declaration of estimated Taxes. It is agreed and understood that no representation or warranty is made by the Company in respect of Tax matters in any Section 279 of the Code or (ii) an “applicable high yield discount obligation” under this Agreement other than Section 163(i) of the Code3.4, Section 3.5, Section 3.11, Section 3.21 and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codethis Section 3.10.
Appears in 2 contracts
Samples: Merger Agreement (Allegheny Energy, Inc), Merger Agreement (Firstenergy Corp)
Tax Matters. Except as set forth in Part 4.14 of the ReShape Disclosure Schedule:
(a) Each of the Stewardship Entities (i) ReShape has timely filed or has had timely caused to be filed on its behalf (taking into account any extension of time within which all Tax Returns related to file) each Return the ReShape IGB Assets or the ReShape IGB Business that are required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed and such Tax Returns are complete and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, were prepared in substantial compliance with applicable Law.
(iib) timely and properly ReShape has (i) paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof (whether or not shown or required to be shown on any Tax Return) required to be paid with respect to the ReShape IGB Assets or the ReShape IGB Business, and (ii) recorded an adequate provision in its financial statements with respect to all Taxes with respect to the ReShape IGB Assets or the ReShape IGB Business that have accrued through the date of such Returns, (iii) established on the books of account financial statements that were not yet due and payable as of the Stewardship Entitiesdate thereof. There are no liens for Taxes upon any of the ReShape IGB Assets except liens for current Taxes not yet due and payable (and for which there are adequate accruals, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and GAAP).
(ivc) ReShape has complied in all material respects with all applicable Laws relating to the payment, reporting, withholding and collection of all Taxes related to the ReShape IGB Assets or the ReShape IGB Business and has within the payment thereof time and manner prescribed by applicable Law in connection with any amounts paid all respects (i) withheld all material Taxes related to the ReShape IGB Assets or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused ReShape IGB Business required to be made on its behalfwithheld, (ii) collected all estimated Tax payments sales, use, value added, goods and services, and similar Taxes related to the ReShape IGB Assets or the ReShape IGB Business required to have been made be collected, and (iii) remitted all Taxes related to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.ReShape IGB Assets or the ReShape IGB Business withheld and collected to the appropriate Governmental Body in accordance with applicable Laws
(d) None ReShape has not waived any statute of the Stewardship Entities has requested limitations in respect of Taxes or agreed to any extension of time within with respect to a Tax assessment or deficiency, in each case (i) with respect to the ReShape IGB Assets or the ReShape IGB Business and (ii) which to file any Return, which Return has not since been filedexpired.
(e) No deficiency claim for any assessment or collection of Taxes related to the ReShape IGB Assets or the ReShape IGB Business has been proposed, or is presently being asserted or assessed is otherwise outstanding against any of the Stewardship Entities that has not been resolved ReShape; and paid in full. No waiver, extension or comparable consent given there is no Proceeding by any of the Stewardship Entities regarding the application of the statute of limitations with Governmental Body pending or threatened against ReShape in respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent that is related to the year ended December 31, 2015, nor is any such Tax audit ReShape IGB Assets or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other LawReShape IGB Business.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities ReShape IGB Assets is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or Code.
(iiig) ReShape is not a “tax-exempt bond financed propertyforeign person” within the meaning of Treasury Regulations Section 168(g)(5) of the Code1.1445-2.
(wh) None ReShape has not been a party to a transaction that, as of the Indebtedness date of any Stewardship Entity this Agreement, constitutes (i) a “corporate acquisition indebtednesslisted transaction” (as defined in for purposes of Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 6011 of the Code and applicable Treasury Regulations thereunder (or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other similar provision of the Codestate, local or foreign Law).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Apollo Endosurgery, Inc.), Asset Purchase Agreement (ReShape Lifesciences Inc.)
Tax Matters. (a) Each of the Stewardship Entities (i) FBMS and its Subsidiaries has filed all material Tax Returns that it was required to file under applicable Laws, other than Tax Returns that are not yet due or for which a request for extension was timely filed or has had timely filed on its behalf (taking into account any extension consistent with requirements of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed applicable Law. All such Tax Returns were correct and complete in all material respects and accurately reflected any have been prepared in substantial compliance with all applicable Laws. All material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods owing by FBMS or portions thereof any of its Subsidiaries (whether or not shown on such Returns, (iiiany Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in fullpaid. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31Since January 1, 2015, neither FBMS nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities its Subsidiaries has received written notice of any claim by any Taxing Governmental Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it FBMS or such Subsidiary does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it is or may be subject to taxation Taxes by that jurisdiction. There are no material Liens for Taxes (other than Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP) upon any of the assets of FBMS or any of its Subsidiaries.
(b) No foreign, federal, state or local Tax audits or administrative or judicial Tax proceedings are currently being conducted or pending or threatened in writing, in each case, with respect to a material amount of Taxes of FBMS or any of its Subsidiaries. Neither FBMS nor any of its Subsidiaries has received from any foreign, federal, state or local taxing authority (including jurisdictions where FBMS or any of its Subsidiaries have not filed Tax Returns) any (i) Except as set forth on Schedule 4.20(inotice indicating an intent to open an audit or other review with respect to Taxes or (ii) notice of deficiency or proposed adjustment for any amount of material Tax proposed, asserted or assessed by any taxing authority against FBMS or any of its Subsidiaries which, in either case (i) or (ii), none have not been fully paid or settled.
(c) Since December 31, 2017, neither FBMS nor any of its Subsidiaries has incurred any liability for Taxes arising from extraordinary gains or losses, as that term is used in GAAP, outside the Stewardship Entities is ordinary course of business.
(d) Neither FBMS nor any of its Subsidiaries has been a party to any Contract “listed transaction,” as defined in Section 6707A(c)(2) of the Code and Section 1.6011-4(b)(2) of the Regulations in any tax year for which the statute of limitations has not expired.
(e) Neither FBMS nor any of its Subsidiaries has taken or agreed to take any action, or is aware of any fact or circumstance, that would result, separately be reasonably likely to prevent the Merger or in the aggregate, in the payment of any Bank Merger from qualifying for U.S. federal income tax purposes as a “excess parachute paymentsreorganization” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii368(a) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed (A) All Tax Returns that were or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return are required to be filed by or sent by it with respect to any Taxing Authority in respect of any TaxesPxxxx and Town Square have been duly and timely filed, each of which was correctly completed or an appropriate extension has been granted, and all such Tax Returns are true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, respects; (ii) timely and properly paid (or had paid on its behalfB) all Taxes due and payable for all Tax periods or portions thereof (whether or not required to be shown on such Returns, (iii) established to be due on the books of account of the Stewardship Entities, Tax Returns referred to in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (ivthis Section 5.03(r)(i)(A)) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent ; and (C) no unexpired waivers of statutes of limitation have been given by any of the Stewardship Entities regarding the application of the statute of limitations or requested with respect to any Taxes of Pxxxx or Town Square. Pxxxx has made available to City true and correct copies of the United States federal income Tax Returns filed by Pxxxx and Town Square for each of the three most recent fiscal years. Neither Pxxxx nor Town Square has any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding liability with regard respect to any Taxes or any Return of any in excess of the Stewardship Entities for any Tax year subsequent to amounts accrued with respect thereto that are reflected in Pxxxx’x Financial Statements or that have arisen in the year ended December ordinary and usual course of business since March 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of 2018. The accruals and reserves for Taxes reflected in Pxxxx’x Financial Statements are adequate for the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returnsperiods covered. There are no outstanding subpoenas Liens for Taxes upon the assets of Pxxxx or requests Town Square other than Liens for information with respect current Taxes not yet due and payable.
(ii) No Tax is required to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement be withheld pursuant to Section 7121 1445 of the Code or any similar provision under any other Lawas a result of the transactions contemplated by this Agreement.
(fiii) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period Pxxxx and Town Square have withheld or portion thereof ending on or prior collected and paid over to the Effective Time that will exceed the estimated reserves appropriate Governmental Authorities, or are properly holding for such payment, all Taxes established required by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims law to be withheld or disputes concerning the Liability for Taxes of any of the Stewardship Entitiescollected.
(giv) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have No claim has ever been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Authority in a jurisdiction where it does Pxxxx or Town Square do not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Pxxxx or Town Square is or may be subject to taxation by that jurisdiction, nor, to Pxxxx’x Knowledge, is there any factual basis for any such claim.
(iv) Neither Pxxxx nor Town Square has applied for any ruling from any Governmental Authority with respect to Taxes nor entered into a closing agreement (or similar arrangement) with any Governmental Authority.
(vi) Neither Pxxxx nor Town Square has been audited by any Governmental Authority for taxable years ended on or subsequent to December 31, 2011. No Tax audit or administrative or judicial Tax proceedings of any Governmental Authority are pending or being conducted with respect to Pxxxx or Town Square and, to the Knowledge of Pxxxx, no such audit or other proceeding has been threatened. No Governmental Authority has asserted, is now asserting, or, to the Knowledge of Pxxxx, is threatening to assert against Pxxxx or Town Square any deficiency or claim for additional Taxes.
(vii) Except as set forth on Pxxxx’x Disclosure Schedule 4.20(iSection 5.03(r), none of the Stewardship Entities neither Pxxxx nor Town Square (A) is a party to any Contract Tax allocation or sharing agreement, (B) has ever been a member of an affiliated group of corporations (within the meaning of Section 1504 of the Code) other than an affiliated group of which Pxxxx is or was the common parent corporation (the “Pxxxx Group”), or (C) has any liability for the Taxes of any person (other than members of the Pxxxx Group) as a transferee or successor, by contract, or otherwise.
(viii) Neither Pxxxx nor Town Square has agreed to any extension of time with respect to any Tax Return or a Tax assessment or deficiency, and no such extension of time has been requested.
(ix) Neither Pxxxx nor Town Square has agreed, nor is it required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise that would will affect its liability for Taxes.
(x) There are no joint ventures, partnerships, limited liability companies, or other arrangements or contracts to which Pxxxx or Town Square is a party that could be treated as a partnership for Tax purposes.
(xi) Except as set forth on Pxxxx’x Disclosure Schedule Section 5.03(r), neither Pxxxx nor Town Square is a party to any agreement, contract, arrangement or plan that has resulted, or could result, separately individually or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(jxii) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (assets of Pxxxx or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and Town Square are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-tax exempt bond financed property” within the meaning of Section 168(g)(5) 168 of the Code and neither Pxxxx nor Town Square are a party to a “long-term contract” within the meaning of Section 460 of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each Parent and each other Person included in any consolidated or combined Tax Return and part of an affiliated group, within the meaning of Section 1504 of the Stewardship Entities Parent Code, of which Parent is or has been a member (i“Parent Tax Affiliate”), for the years that it was a Parent Tax Affiliate of Parent:
(A) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(B) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, Parent and each of which was correctly Parent Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.respects; and
(bC) Each of the Stewardship Entities has made (not requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eb) No deficiency Parent has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Parent through the date hereof for the periods ending on or after December 31, 2005.
(c) Except as set forth in Schedule 5.1(h)(iii):
(A) since January 1, 2006, neither Parent nor any Parent Tax Affiliate (for the years that it was a Parent Tax Affiliate) has been notified by the Internal Revenue Service or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Parent or any Parent Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Parent or any Parent Tax Affiliate (for years that it was a Parent Tax Affiliate); no Tax liens have been filed against Parent or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Parent or any Return is outstanding, nor is any request Parent Tax Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was a Parent Tax Affiliate), there ;
(B) full and adequate accrual has been no Tax audit or other administrative proceeding or court proceeding with regard to any made (i) on the Parent Interim Balance Sheet, and the books and records of Parent for all income Taxes or any Return of any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Parent for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Parent Interim Balance Sheet Date, and (ii) on the estimated reserves books and records of Parent and for such all Taxes established payable by Parent for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Parent Interim Balance Sheet Date;
(C) Parent has not incurred any liability for Taxes from and after the Parent Interim Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices;
(D) Parent has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code;
(E) Parent has complied in all material respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
(F) Parent has no liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Parent has been bound have been terminated;
(G) Parent has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
(1) shall be non-deductible under, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Stewardship Entities.Code (or any corresponding provision of state local or foreign income Tax Law); or
(g2) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code;
(H) Parent has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.accounting methods of Parent;
(hI) To no claim has been made within the Knowledge of Stewardship, none of the Stewardship Entities has last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Parent does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Parent is or may be subject to taxation by that jurisdiction.;
(iJ) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement Merger will not be a factor causing payments to be made by any of trigger the Stewardship Entities realization or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period intercompany gain or income to a taxable period prior to Parent under the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority Federal consolidated return regulations with respect to any of the Stewardship Entities which would be binding following the Effective TimeFederal, and no such agreements state or rulings have been applied for by any Stewardship Entity and are currently pending.local Taxes;
(lK) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that Parent’s shareholders are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (foreign Persons within the meaning of Treasury Regulation Section 301.6111§ 1.1445-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B2(b) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible rules and regulations promulgated under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) 1445 of the Code, and none Southern has been furnished with a true and accurate certificate of Parent so stating which complies in all respects with Treasury Regulation § 1.1445-2(b)(2) of such rules and regulations; and
(L) Parent is not currently, nor has it been at any time during the interest on any previous five years, a “U.S. real property holding corporation” and, therefore, the Parent Common Stock is not “U.S. real property interests,” as such indebtedness will be disallowed as a deduction under any other provision terms are defined in Section 897 of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely Except as set forth in Section 3.18(a)(i) of the Company Disclosure Letter, all Tax Returns that are required to be filed on its behalf or before the effective time of the Closing (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension extensions of time within which to file any Returnwhich have not expired) by or with respect to the Company, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted the Bank or assessed against any of the Stewardship Entities Subsidiaries have been or will be timely filed on or before the effective time of the Closing, (ii) all such Tax Returns are or will be true and complete in all material respects, (iii) all Taxes shown to be due on the Tax Returns referred to in clause (i) have been or will be timely paid in full and all other Taxes that has are imposed on the Company, the Bank or any of the Subsidiaries and that have due dates on or before the effective time of the Closing have or will be paid, (iv) the Tax Returns referred to in clause (i) are not currently under examination, (v) all deficiencies asserted or assessments made as a result of examinations conducted by any taxing authority have been resolved and paid in full. No waiver, extension or comparable consent given other than deficiencies and assessments that are being contested in good faith by appropriate proceedings and for which reserves adequate in accordance with GAAP have been provided, (vi) no issues that have been raised by the appropriate taxing authority in writing in connection with the examination of any of the Stewardship Entities regarding Tax Returns referred to in clause (i) are currently pending and (vii) neither the application Company, the Bank nor any of the statute Subsidiaries has extended or waived any statutes of limitations limitation with respect to any Taxes of the Company, the Bank or any Return is outstandingthe Subsidiaries.
(b) There are no material Liens for Taxes upon the assets of the Company, nor is any request for any such waiver the Bank or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31Subsidiaries, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information than with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code Taxes not yet due and payable or any similar provision under any other Lawthat are being contested in good faith by appropriate proceedings and for which reserves adequate in accordance with GAAP have been provided.
(fc) To the Knowledge of Stewardship, no additional Taxes will be assessed against No written claim has ever been made by any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes Governmental Entity in a jurisdiction where it does not file a Returnthe Company, nor has the Bank or any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Subsidiaries files Tax Returns that it is or may be subject to taxation by that jurisdiction.
(id) The Company has made available to Investor true and correct copies of the United States federal and state income Tax Returns filed by the Company, the Bank and/or the Subsidiaries for each of the four most recent fiscal years for which such returns have been filed.
(e) Neither the Company, the Bank nor any of the Subsidiaries has liability with respect to income, franchise or similar Taxes that accrued on or before the end of the most recent period covered by the consolidated financial statements of the Company, the Bank and the Subsidiaries in excess of the amounts accrued or subject to a reserve with respect thereto that are reflected therein.
(f) Except as set forth on Schedule 4.20(i)in Section 3.18(f) of the Company Disclosure Letter, none of the Stewardship Entities Company, the Bank or any of the Subsidiaries (i) is a party to any Contract that would resultTax allocation, separately Tax indemnity or in Tax sharing agreement, is or has been a member of an affiliated group filing consolidated unitary or combined Tax Returns (other than a group the aggregatecommon parent of which is or was the Company) or, in the payment (ii), has any liability for Taxes of any “excess parachute payments” within Person (other than the meaning of Section 280G of Company, the Code, and the consummation of the transactions contemplated by this Agreement will not be Bank or a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in partSubsidiary) as a result of arising from the application of Treasury Regulation Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (1.1502-6 or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions analogous provision of state, local or foreign Tax Law, or otherwise has any liability for the Taxes of any Person (other than the Company, the Bank or a Subsidiary) as a transferee or successor, by contract, or otherwise.
(kg) No closing agreements, private letter rulings rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Taxing Authority taxing authority with respect to the Company, the Bank or any of the Stewardship Entities which would be binding following the Effective Time, Subsidiaries and no such agreements agreement or rulings have ruling has been applied for by any Stewardship Entity and are is currently pending.
(lh) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(23.18(h) of the Code during Company Disclosure Letter, neither the applicable period specified in Section 897(c)(1)(A)(ii) Company, the Bank nor any of the Code.
(n) None Subsidiaries maintains any compensation or benefits plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the Stewardship Entities (i) has been a member limitations under Section 162(m), 280G or 404 of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for Code and the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 regulations issued thereunder (or any similar provision of LawLaws), as a transferee or successor, by Contract, or otherwise.
(oi) None No Tax is required to be withheld pursuant to Section 1445 of the Stewardship Entities constitutes either Code as a result of the transactions contemplated by this Agreement.
(j) All Taxes that the Company, the Bank or any of the Subsidiaries is or was required by Law to withhold, collect or deposit have been duly withheld, collected or deposited and, to the extent required by applicable Law, have been paid to the proper Governmental Entity or other Person.
(k) Neither the Company, the Bank nor any of the Subsidiaries has been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under occurring during the last five years in which the parties to such distribution treated the distribution as one to which Section 355 of the Code that is applicable.
(l) Except as set forth in Section 3.18(l) of the Company Disclosure Letter, neither the Company, the Bank nor any of the Subsidiaries will be required to include amounts in income, or exclude items of deduction, in a taxable period beginning after the effective time of the Closing as a result of (i) took place during a change in method of accounting occurring prior to the two (2) year period ending on effective time of the date of this Agreement or Closing, (ii) could otherwise constitute part of an installment sale or open transaction arising in a “plan” taxable period (or “series of related transactions” (within portion thereof) ending on or before the meaning of Section 355(e) effective time of the CodeClosing, (iii) in conjunction with a prepaid amount received, or paid, prior to the transactions contemplated by this Agreementeffective time of the Closing or (iv) deferred intercompany gains or losses, intercompany items, or similar items arising prior to the effective time of the Closing.
(pm) None Neither the Company, the Bank nor any of the Stewardship Entities Subsidiaries has engaged in any transaction that is subject could give rise to disclosure (i) a registration obligation with respect to any Person under Treasury Regulation Section 1.6011-4 6111 of the Code or 1.6011-4Tthe regulations thereunder, (ii) a list maintenance obligation with respect to any Person under Section 6112 of the Code or the regulations thereunder, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)iii) or a disclosure obligation as a “potentially abusive tax shelterreportable transaction” (within under Section 6011 of the meaning of Treasury Regulation Section 301.6112-1(b))Code and the regulations thereunder.
(qn) None Neither the Company, the Bank nor any of the Stewardship Entities Subsidiaries has and has never had a “permanent establishment” establishment in any country other than the United Statesforeign country, as such term is defined under in any applicable Tax treaty or convention between the United States and such other foreign country.
(r) No power of attorney granted by , and neither the Company, the Bank nor any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns Subsidiaries has engaged in a manner for which there is substantial authority, trade or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Codebusiness within any foreign country.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) Pivot has timely filed or has had timely filed on its behalf (taking into account all federal income Tax Returns and other material Tax Returns that they were required to file under applicable Legal Requirements. All such Tax Returns were correct and complete in all material respects and have been prepared in material compliance with all applicable Legal Requirements. Pivot is not currently the beneficiary of any extension of time within which to filefile any Tax Return. No claim has ever been made by an authority in a jurisdiction where Pivot does not file Tax Returns that it is subject to taxation by that jurisdiction.
(b) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all All material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods owing by Pivot on or portions thereof before the date hereof (whether or not shown on such Returns, (iiiany Tax Return) established have been paid. The unpaid Taxes of Pivot have been reserved for on the books of account of the Stewardship Entities, Pivot Unaudited Interim Balance Sheet in accordance with GAAP and consistent GAAP. Since the date of the Pivot Unaudited Interim Balance Sheet, Pivot has not incurred any Liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past practices, adequate reserves for the payment of any custom and practice.
(c) Pivot has withheld and paid all Taxes not then due required to have been withheld and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder, or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(cd) There are no Encumbrances for Taxes (other than Taxes not yet due and payable or Taxes that are being contested in good faith and for which adequate reserves have been made on Pivot’s Unaudited Interim Balance Sheet) upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None assets of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filedPivot.
(e) No deficiency deficiencies for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Pivot have been claimed, proposed or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities assessed by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or ReturnsGovernmental Body in writing. There are no outstanding subpoenas pending (or, based on written notice, threatened) audits, assessments or requests other actions for information or relating to any liability in respect of Taxes of Pivot. No issues relating to Taxes of Pivot were raised by the relevant Tax authority in any completed audit or examination that would reasonably be expected to result in a material amount of Taxes in a later taxable period. Pivot has delivered or made available to Merger Partner complete and accurate copies of all federal income Tax and all other material Tax Returns of Pivot (and its predecessors) for all taxable years remaining open under the applicable statute of limitations, and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by Pivot (and its predecessors), with respect to federal income Tax and all other material Taxes. Pivot (or any of the Returns its predecessors) has not waived any statute of limitations in respect of Taxes or agreed to any extension of the Stewardship Entities. None of the Stewardship Entities time with respect to a Tax assessment or deficiency, nor has entered into a closing agreement pursuant to Section 7121 of the Code any request been made in writing for any such extension or any similar provision under any other Lawwaiver.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed All material elections with respect to Taxes affecting Pivot as of the Stewardship Entities for taxable periods ended date hereof, to the extent such elections are not shown on or after December 31, 2015, indicates those in the Tax Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided delivered or made available to Columbia.
(h) To the Knowledge of StewardshipMerger Partner, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as are set forth on Schedule 4.20(i3.10(f), none . Pivot (i) has not consented at any time under former Section 341(f)(1) of the Stewardship Entities is a party Code to have the provisions of former Section 341(f)(2) of the Code apply to any Contract that would resultdisposition of the assets of Pivot; (ii) has not agreed, separately or is required, to make any adjustment under Section 481(a) of the Code by reason of a change in the aggregateaccounting method or otherwise; (iii) has not made an election, in the payment or is required, to treat any of any “excess parachute payments” its assets as owned by another Person for Tax purposes or as a tax-exempt bond financed property or tax-exempt use property within the meaning of Section 280G 168 of the Code, and ; (iv) has not acquired or owns any assets that directly or indirectly secure any debt the consummation interest on which is tax exempt under Section 103(a) of the transactions contemplated by this Agreement Code; (v) has not made or will make a consent dividend election under Section 565 of the Code; (vi) has not be a factor causing payments elected at any time to be treated as an S corporation within the meaning of Sections 1361 or 1362 of the Code; or (vii) has not made by any of the Stewardship Entities foregoing elections or is required to apply any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time foregoing rules under any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions provision of state, local or foreign Tax Lawlaw.
(kg) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are Pivot has not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(nh) None Pivot is not a party to any Tax allocation, Tax sharing or similar agreement (including indemnity arrangements), other than commercial contracts entered into in the Ordinary Course of the Stewardship Entities Business with vendors, customers and landlords.
(i) Pivot has never been a member of an affiliated group filing a consolidated consolidated, combined or unitary Tax Return (other than a group the common parent of which was Stewardshipis Pivot) for federal, state, local or (ii) foreign Tax purposes. Pivot has any no Liability for the Taxes of any Person (other than Stewardship or Stewardship BankPivot) under Treasury Regulations Section 1.1502-6 (or any similar provision of Lawstate, local, or foreign law), as a transferee or successor, by Contract, or otherwise.
(oj) None Pivot has not distributed stock of the Stewardship Entities constitutes either a “distributing corporation” another Person, or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) has had its stock distributed by another Person, in a distribution of shares qualifying for tax-free treatment under transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) 361 of the Code.
(tk) There Pivot is no Contractnot a partner for Tax purposes with respect to any joint venture, plan partnership, or, to the Knowledge of Pivot, other arrangement or arrangementcontract which is treated as a partnership for Tax purposes.
(l) Pivot will not be required to include any item of income in, including this Agreementor exclude any item of deduction from, pursuant to which taxable income for any current period (or former employee of any of portion thereof) ending after the Stewardship Entities would be entitled to receive any payment Closing Date as a result of any (i) installment sale or other open transaction disposition made on or prior to the Closing Date, or (ii) agreement with any Tax authority (including any closing agreement described in Section 7121 of the Code or any similar provision of state, local or foreign law) made or entered into on or prior to the Closing Date.
(m) Pivot has not entered into any transaction identified as a “listed transaction” for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2).
(n) Pivot has not taken any action, or has any knowledge of any fact or circumstance, that could reasonably be expected to prevent the transactions contemplated by this Agreement that would not be deductible under hereby, including the Merger, from qualifying as a reorganization within the meaning of Section 404 or 162(m368(a) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Merger Agreement (Novacea Inc)
Tax Matters. (a) Each Except as Disclosed, full provision or reserve has been made in the Accounts for all Taxation liable to be assessed on the Company or for which it is or may become accountable in respect of the Stewardship Entities period ended on the Accounts Date and the Accounts are sufficient and make proper provision for deferred Taxation, in each case, for all the preceding six accounting periods ended on or before the Accounts Date. The Company’s tax computation returns for three years preceding Completion are Disclosed. Except as Disclosed : (i) the Company has timely filed or has had timely filed on its behalf (taking into account punctually with the relevant Taxation Authority when due all returns, declarations and reports and information returns and statements in respect of any extension of time within which to file) each Return Taxation required to be filed by or sent by with respect to it to any Taxing Authority in respect of any Taxeson or before the date hereof for the preceding seven years (collectively, each of which was correctly completed “Returns”) and all such Returns are accurate and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, have been made on a proper and any Affiliate of such entity, covered by such Return, consistent basis; (ii) timely all deficiencies in the Returns identified and properly notified to the Company by the Taxation Authority have been paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, and/or settled; (iii) established on the books Returns which have not been examined by the Taxation Authority and for which the statute of account limitations remains open were either prepared consistently with the Returns which have been examined or for which the statute of limitations has expired, or adequate provision has been made therefor in the Stewardship EntitiesAccounts; (iii) the Company has duly and punctually paid all Taxation which it ought to have paid and the Company has not in the last six years been liable to any penalty, interest, supplement, fine, default, surcharge or other similar payment in accordance connection with GAAP and consistent with past practices, adequate reserves for any Taxation; (iv) the Company is not delinquent in the payment of any Taxes Taxation and has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file or send any Return, which Return has not since been filed.
filed or sent; and (ev) No no deficiency for any Taxes Taxation has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved Company for which the Company could be liable and paid in full. No waiver, extension so far as the Seller and Bridgehead are aware there is no fact or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of circumstance which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could might give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Codedeficiency.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Utek Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) The Company has duly and timely filed or has had timely filed on its behalf (taking into account any extension all Income Tax Returns and all other Tax Returns which, if properly prepared and filed, would involve more than an immaterial amount of time within Tax due, that it was required to file with the appropriate taxing authorities in all jurisdictions in which to file) each Return such Tax Returns are required to be filed or sent by it to any Taxing Authority filed. All such Tax Returns were true, correct and complete, in respect of any Taxeseach case, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all respects. All Taxes due and payable for all Tax periods or portions thereof owing by the Company (whether or not shown on such Returns, (iiiany Tax Return) established have been fully paid and all Taxes incurred as of the date of the Most Recent Balance Sheet but not yet due have been adequately reserved for on the books of account Most Recent Balance Sheet (which reserves or accounts are set forth on the Company's detailed balance sheet). There are no Liens for Taxes (other than Taxes not yet due and payable) upon any of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for assets of the payment Company. All required estimated Tax payments sufficient to avoid any underpayment penalties have been made by or on behalf of any Taxes not then due and payable and (iv) the Company. The Company has complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and has duly and timely withheld and paid over to the payment thereof in connection with any appropriate taxing authorities all amounts to be so withheld and paid or owing to any employee, independent contractor, creditor, shareholder or other third partyover for all periods under all applicable Laws.
(bii) Each All deficiencies asserted or assessments made as a result of any examinations by any taxing authority of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to Returns of the Company have been made to avoid any underpayment penalties.
fully paid or are being validly contested (cwhich contested Taxes, if any, are listed in SECTION 4(K)(II) There OF THE DISCLOSURE SCHEDULE), and there are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted other audits or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardshipany Seller or the Company, is other investigations by any taxing authority in progress other than those listed in SECTION 4(K)(II) OF THE DISCLOSURE SCHEDULE, nor has any Seller or the Company received any notice from any taxing authority that it intends to conduct such Tax an audit or other proceeding threatened with regard to investigation or that any claim for unpaid Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to has become a Lien of any kind against the property of the Returns of Company or is being asserted against the Company. No issue has been raised by any taxing authority in any current or prior examination which, by application of the Stewardship Entities. None of the Stewardship Entities has entered into same or similar principles, could reasonably be expected to result in a closing agreement pursuant to Section 7121 of the Code or proposed deficiency for any similar provision under any other Lawsubsequent taxable period.
(fiii) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(gSECTION 4(K)(III) Schedule 4.20(g) OF THE DISCLOSURE SCHEDULE lists all federal, state, local and foreign income franchise, sales or Income Tax Returns filed with respect to the Stewardship Entities Company for taxable periods ended on or after December 31, 20152000, indicates those franchise, sales and Income Tax Returns that have been audited and indicates those franchise, sales and Income Tax Returns that currently are the subject of audit. True In addition, SECTION 4(K)(III) OF THE DISCLOSURE SCHEDULE lists all franchise, sales and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state Income Taxes paid for taxable periods ended on or local Tax jurisdictions for the years ended after December 31, 2015, 2016 and 2017 have 2000. No claim has been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes by a taxing authority in a jurisdiction where it the Company does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in Tax Returns such a jurisdiction that it is or may be subject to taxation by that jurisdiction. Buyer has received complete copies of all franchise and Income Tax Returns and all audit reports issued within the last three (3) years with respect to such Tax Returns. The Company has not waived any statute of limitations in respect of Taxes or requested or agreed to any extension of time with respect to a Tax assessment or deficiency.
(iiv) Except as set forth on Schedule 4.20(i), none of Neither the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or Company nor any other Person that are not deductible (in whole or in partincluding any Seller) as a result on behalf of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period Company has on or prior to the Effective Time but was not recognized Closing Date (A) filed a consent under Code Section 341(f) concerning collapsible corporations, (B) agreed to or is required to make any adjustments pursuant to Code Section 481(a) or any similar provision of law or has any Knowledge that any taxing authority has proposed any such adjustment, or has any application pending with any taxing authority requesting permission for Tax purposes any change in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior accounting methods that relate to the Effective TimeCompany or (C) as executed or entered into a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, closing agreement pursuant to Code Section 481 7121 or Code Section 108(i) or comparable provisions any similar provision of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority law with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are Company. Company has not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Code Section 897(c)(2) of the Code during the applicable period specified in Code Section 897(c)(1)(A)(ii). The Company is not a party to or bound by any Tax allocation, indemnity, sharing or similar arrangement or agreement. The Company (x) of the Code.
(n) None of the Stewardship Entities (i) is not and has not been a member of an affiliated group Affiliated Group filing a consolidated federal Income Tax Return (other than a group the common parent of which was Stewardshipthe Company) or and (iiy) has any Liability no liability for the Taxes of any Person (other than Stewardship or Stewardship Bankthe Company) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise. No Seller is a foreign person within the meaning of Code Section 1445.
(ov) None Except as provided in SECTION 4(K)(V) OF THE DISCLOSURE SCHEDULE, no property owned by the Company is (i) property required to be treated as being owned by another Person pursuant to the provisions of Section 168(f)(8) of the Stewardship Entities constitutes either Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, (ii) "tax-exempt use property" within the meaning of Code Section 168(h)(1), (iii) "tax-exempt bond financed property" within the meaning of Code Section 168(g), (iv) subject to Code Section 168(g)(1)(A) or (v) "limited use property" within the meaning of Rev. Proc. 2001-28.
(vi) The Company is not a “distributing corporation” party to or bound by (A) any Contract, plan or arrangement covering any Person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by Buyer or its Affiliates by reason of Code Section 280G, (B) any private letter ruling of the Internal Revenue Service or comparable rulings of other taxing authorities or (C) any power of attorney with respect to any Tax matter that is currently in force.
(vii) The Company has not constituted a “"controlled corporation” " (within the meaning of Code Section 355(a)(1)(A) of the Code)) in a distribution of shares stock qualifying for tax-free treatment under Code Section 355 of the Code that (iA) took place during in the two (2) year period ending on years prior to the date of this Agreement hereof or (iiB) in a distribution which could otherwise constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Code Section 355(e) of the Code)) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(tviii) There is no Contract, plan taxable income of the Company that will be required under applicable Tax Law to be recognized by Buyer or arrangementits Affiliates, including this Agreementthe Company, pursuant for a taxable period beginning after the Closing Date which taxable income was realized and resulted in economic income (i.e., the receipt of cash or other property arising from such realization) prior to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the CodeClosing Date.
(uix) Except as set SECTION 4(K)(IX) OF THE DISCLOSURE SCHEDULE sets forth on Schedule 4.20(u), none the tax basis of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) fixed assets of the Code (as in effect prior to amendment by the Tax Reform Act of 1986)Company, (ii) “tax-exempt use property” within the meaning of Section 168(h) for each of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) Company's operating divisions, as of the Code.
(w) None Most Recent Fiscal Year End as such tax bases are reflected on the books and records of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the CodeCompany.
Appears in 1 contract
Samples: Stock Purchase Agreement (Von Hoffmann Holdings Inc)
Tax Matters. (a) Each of the Stewardship Entities The Seller has: (i) has timely properly filed or has had timely filed on its behalf (taking into account any extension of time within which all material Tax Returns that it is and was required to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed and all such Tax Returns were true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, respects; (ii) timely and has properly paid (or had paid on its behalf) a timely basis all Taxes due and payable for all Tax periods or portions thereof material Taxes, whether or not shown on such its Tax Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then that were due and payable payable; has withheld or collected all material Taxes that the Seller is or was required by law to withhold or collect and, to the extent required, have been properly paid on a timely basis to the appropriate Governmental Entity; and (iv) has complied with all information reporting and back-up withholding requirements in all material respects respects, including maintenance of the required records with all applicable Laws relating to the withholding of Taxes and the payment thereof respect thereto, in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder creditor or other third party.
(b) Each The unpaid Taxes of the Stewardship Entities has made Seller for periods through the date of the Most Recent Balance Sheet Date do not materially exceed the accruals and reserves for Taxes (excluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Most Recent Balance Sheet. All Taxes attributable to the period from and after the Most Recent Balance Sheet Date and continuing through the Closing Date are, or caused will be, attributable to be made on the conduct by the Seller of its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesoperations in the Ordinary Course of Business.
(c) There are no Encumbrances for Taxes upon any assets No examination or audit of any Tax Return of the Stewardship EntitiesSeller by any Governmental Entity is currently in progress or, except Permitted Encumbrancesto the knowledge of the Seller, threatened or contemplated. Kentucky and its local subdivisions are the only jurisdictions (other than United States federal) in which the Seller files, or is required to file or has been required to file a material Tax Return or is or has been liable for material Taxes on a "nexus" basis. The Seller has not been informed by any jurisdiction that the jurisdiction believes that the Seller was required to file any Tax Return that was not filed.
(d) None RFK is, and has been since its inception, validly classified and treated as a "partnership" for federal income tax purposes and has been validly treated in a similar manner for purposes of the Stewardship Entities income Tax laws of all states in which it has been subject to taxation.
(e) The Seller has delivered or made available to the Buyer (i) complete and correct copies of all Tax Returns relating to Taxes for all Taxable periods ending December 31, 2006, 2005 and 2004 and (ii) complete and correct copies of all private letter rulings, revenue agent reports, information document requests, notices of assessment, notices of proposed deficiencies, deficiency notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests and any similar documents submitted by, received by or agreed to by or on behalf of the Seller relating to Taxes for all Taxable periods for which the applicable statute of limitations has not yet expired.
(f) The Seller has not (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of any Taxes, (ii) requested any extension of time within which to file any Tax Return, which Tax Return has not since yet been filed.
, or (eiii) No deficiency for executed or filed any power of attorney relating to Taxes has been proposed, asserted or assessed against with any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship EntitiesGovernmental Entity.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect The Seller is not a party to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdictionlitigation regarding Taxes.
(i) Except as set forth on Schedule 4.20(i), none There are no Security Interests with respect to Taxes upon any of the Stewardship Entities Acquired Assets, other than with respect to Taxes not yet due and payable; and (ii) to the Seller's and Members' knowledge, there is a party no basis for the assertion of any claim relating or attributable to Taxes, which, if adversely determined, would result in any Contract that Security Interest on the Acquired Assets, or would resultreasonably be expected to have, separately individually or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the CodeSeller Material Adverse Effect.
(ji) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities Acquired Assets (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction is property that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat be treated as being owned by another Person under any other person pursuant to the provisions of former Section 168(f)(8) of the Internal Revenue Code (as in effect prior to amendment by the Tax Reform Act of 1986)1954, or (ii) “tax-is "tax exempt use property” " within the meaning of Section 168(h) of the Code Code.
(j) The Seller has maintained complete and accurate records, including all applicable exemption, resale or other certificates, of (iiii) “taxall sales to purchasers claiming to be exempt from sale and use Taxes based on the exempt status of the purchaser, and (ii) all other sales for which sales Tax or use Tax was not collected by the Seller and as to which the Seller is required to receive and retain resale certificates or other certificates relating to the exempt nature of the sale or use or non-exempt bond financed property” applicability of the sale and use Taxes.
(k) The Seller is not bound by any Tax indemnity, Tax sharing or Tax allocation agreement. The Seller is not a "foreign person" within the meaning of Section 168(g)(5) 1445 of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement (Suncrest Global Energy Corp)
Tax Matters. (a) Each of WebMD and its Subsidiaries have filed all federal and state income tax returns for all periods prior to the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within date hereof which to file) each Return were required to be filed, and, except as described on Schedule 7.15, no returns so filed have ------------- been examined by the IRS or sent by it any state agency with respect to any Taxing Authority in respect such period. Except as listed on Schedule 7.15, WebMD has not received notice of any TaxesTax ------------- claims being asserted or any proposed assessment by any taxing authority and, each to the knowledge of which was correctly completed in all material respects and accurately reflected WebMD, no Tax returns thereof have been examined by the IRS or the appropriate state agencies for any material Liability for Taxes of fiscal year or period ended prior to the relevant Stewardship Entitydate hereof, and WebMD is not presently under, nor has any Affiliate such entity received notice of, any contemplated, investigation or audit by the IRS or any state agency concerning any fiscal year or period ended prior to the date hereof. Except as listed on Schedule 7.15, WebMD has not executed any extension or ------------- waivers of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established any statute of limitations on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment assessment or collection of any Taxes not then tax due and payable and (iv) complied that is currently in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partyeffect.
(b) Each As of the Stewardship Entities has made (or caused date hereof, WebMD and each of its Subsidiaries have filed all Tax returns required to be made on its behalf) all estimated Tax payments required to filed at this date, taking into account any extensions of the filing deadlines which have been made validly granted to avoid any underpayment penaltiessuch entity and which are listed on Schedule 7.15, and such returns are true and ------------- correct in all Material respects and properly reflect the Tax Liabilities of WebMD and each of its Subsidiaries for the periods, property or events covered thereby, and each such entity has paid all Taxes (including penalties and interest in respect thereof, if any) that have become or are due with respect to any period through the date hereof whether shown on such returns or not.
(c) There are no Encumbrances Adequate provision has been made in the Financial Statements in accordance with GAAP as of September 30, 1998, for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrancesall Tax Liabilities not required to be paid prior to such date and for all current and deferred Taxes.
(d) None WebMD and each of its Subsidiaries, and each of their respective predecessors to which any such entity has succeeded, has withheld or collected from each payment made to each of their employees the Stewardship Entities amount of all Taxes required to be withheld or collected therefrom and has requested any extension of time within which paid the same to file any Return, which Return has not since been filedthe proper tax depositories or collecting authorities.
(e) No deficiency All ad valorem property taxes for any Taxes has been proposedyears prior to 1999 imposed on WebMD, asserted or assessed against any of the Stewardship Entities that has not its Subsidiaries or their respective predecessors have been resolved and paid in full. No waiverfull or adequately reserved in the consolidated financial statements contained in the WebMD Documents, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Lawappropriate.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against Neither WebMD nor any of the Stewardship Entities for any Tax period or portion thereof ending on or prior its Subsidiaries, nor to the Effective Time that will exceed the estimated reserves for knowledge of WebMD or its Subsidiaries, their respective predecessors to which any such Taxes established by the Stewardship Entities. To the Knowledge entity has succeeded, has ever made an election under Section 341(f) of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities entity is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) 897 of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Internal Revenue Code.
Appears in 1 contract
Samples: Merger Agreement (Webmd Inc)
Tax Matters. (a) Each Except as set forth on the Parent Disclosure Schedule: (i) Parent and (ii) each other Person included in any consolidated or combined Tax Return and part of an affiliated group, within the meaning of Section 1504 of the Stewardship Entities Parent Code, of which Parent is or has been a member ("Parent Tax Affiliate"), for the years that it was a Parent Tax Affiliate of Parent:
(i) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(ii) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it to any Taxing with the appropriate Authority in respect all jurisdictions in which such Tax Returns are required to be filed; and all tax returns filed on behalf of any Taxes, Parent and each of which was correctly Parent Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, respects; and
(iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eb) No deficiency Parent has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Parent through the date hereof for the periods ending after December 31, 2004.
(c) Except as set forth in the Parent Disclosure Schedule:
(i) since January 1, 2004, neither Parent nor any Parent Tax Affiliate (for the years that it was a Parent Tax Affiliate) has been notified by the Internal Revenue Service or any other Authority that any issues have been raised (and no such issues are currently pending) by the IRS or any other Authority in connection with any Tax Return filed by or on behalf of Parent or any Parent Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Parent or any Parent Tax Affiliate (for years that it was a Parent Tax Affiliate); no Tax liens have been filed against Parent or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Parent or any Return is outstanding, nor is any request Parent Tax Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was a Parent Tax Affiliate), there ;
(ii) full and adequate accrual has been no Tax audit or other administrative proceeding or court proceeding with regard to any made (i) on the most recent balance sheet included in the Parent SEC filings, and the books and records of Parent for all income Taxes or any Return of any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Parent for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed date of the estimated reserves most recent balance sheet included in the Parent SEC Documents, and (ii) on the books and records of Parent and for such all Taxes established payable by Parent for all periods beginning after the Stewardship Entities. To date of the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning most recent balance sheet included in the Liability Parent SEC Documents;
(iii) Parent has not incurred any liability for Taxes from and after the date of the most recent balance sheet included in the Parent SEC Documents other than Taxes incurred in the ordinary course of business and consistent with past practices;
(d) Parent has not (i) made an election (or had an election made on its behalf by another person) to be treated as a "consenting corporation" under Section 341(f) of the Code or (ii) a "personal holding company" within the meaning of Section 542 of the Code;
(e) Parent has complied in all material respects with all Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees);
(f) Parent has no liability in respect of any of the Stewardship Entities.Tax sharing agreement with any Person and all Tax sharing agreements to which Parent has been bound have been terminated;
(g) Schedule 4.20(gParent has not incurred any liability to make any payments either alone or in conjunction with any other payments that:
(i) lists all federalshall be non-deductible under, state, or would otherwise constitute a "parachute payment" within the meaning of Section 280G of the Code (or any corresponding provision of state local and or foreign income Returns filed with respect Tax Law); or
(ii) are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code;
(h) Parent has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.accounting methods of Parent;
(hi) To no claim has been made within the Knowledge of Stewardship, none of the Stewardship Entities has last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Parent does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Parent is or may be subject to taxation by that jurisdiction.;
(ij) Except as set forth on Schedule 4.20(i)the consummation of the Merger will not trigger the realization or recognition of intercompany gain or income to Parent under the Federal consolidated return regulations with respect to Federal, state or local Taxes;
(k) none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” Parent's stockholders are foreign Persons within the meaning of Treasury Regulation 1.1445-2(b) of the rules and regulations promulgated under Section 280G 1445 of the Code, and the consummation Company has been furnished with a true and accurate certificate of Parent so stating which complies in all respects with Treasury Regulation Section 1.1445-2(b)(2) of such rules and regulations; and
(l) Parent is not currently, nor has it been at any time during the transactions contemplated by this Agreement will previous five years, a "U.S. real property holding corporation" and, therefore, the Parent Common Stock is not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that "U.S. real property interests," as such terms are not deductible (defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) SANZ, each Subsidiary and each Affiliated Group has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all consolidated, combined and unitary Tax Returns required to be filed or sent by it to with any Taxing Tax Authority and each such Tax Return has been prepared in respect of any Taxes, each of which was correctly completed in compliance with all material respects applicable laws and accurately reflected any material Liability for Taxes of the relevant Stewardship Entityregulations, and any Affiliate of all such entity, covered by such Return, (ii) timely Tax Returns are true and properly paid (or had paid on its behalf) all accurate. All Taxes due and payable for all Tax periods or portions thereof by SANZ and its Subsidiaries (whether or not shown or required to be shown on such Returns, (iiiany Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP have been paid and consistent with past practices, adequate reserves for the payment of any Taxes not then due SANZ and payable its Subsidiaries have withheld and (iv) complied in all material respects with all applicable Laws relating paid over to the withholding of appropriate Taxing Authority all Taxes and the payment thereof in connection with any which they are required to withhold from amounts paid or owing to any employee, independent contractorstockholder, creditor, shareholder creditor or other third party. All Taxes accrued but not yet due are accrued on the Latest Balance Sheet.
(b) Each Except as set forth on the attached SANZ Taxes Schedule:
(i) neither SANZ nor any of its Subsidiaries has requested or been granted an extension of the Stewardship Entities time for filing any Tax Return which has made (or caused to be made on its behalf) all estimated Tax payments required to have not yet been made to avoid any underpayment penalties.filed;
(cii) There are no Encumbrances for Taxes upon any assets of neither SANZ nor any of its Subsidiaries has consented to extend to a date later than the Stewardship Entities, except Permitted Encumbrances.date hereof the time in which any Tax may be assessed or collected by any taxing authority;
(diii) None with respect to each taxable period of SANZ and its Subsidiaries and each taxable period of an Affiliated Group during which SANZ or any Subsidiary was a member of the Stewardship Entities Affiliated Group ending on or before December 31, 1998, either such taxable period has requested been audited by the relevant Taxing Authority or the time for assessing or collecting Tax with respect to each such taxable period has closed and such taxable period is not subject to review by any extension of time within relevant Taxing Authority;
(iv) no deficiency or proposed adjustment which to file any Return, which Return has not since been filed.
(e) No deficiency settled or otherwise resolved for any Taxes amount of Tax has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding against SANZ or any such Tax Subsidiary;
(v) there is no action, suit, Taxing Authority proceeding or audit or other proceedingnow in progress, norpending or, to the Knowledge of StewardshipSANZ's Knowledge, is any such Tax audit threatened by a Taxing Authority against or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to SANZ or any Subsidiary;
(vi) SANZ does not reasonably expect any Taxing Authority to claim or assess any amount of additional Taxes against SANZ or any Subsidiary;
(vii) no claim has ever been made by a Taxing Authority in a jurisdiction where SANZ or any Subsidiary, respectively, does not file Tax Returns claiming that SANZ or any Subsidiary, respectively, is or may be subject to Taxes assessed by such jurisdiction;
(viii) there are no Liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of SANZ or any of the Returns of its Subsidiaries;
(ix) neither SANZ nor any of its Subsidiaries is a party to or bound by any Tax allocation or Tax sharing agreement and has no current or potential contractual obligation to indemnify any other Person with respect to Taxes;
(x) the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement Holding Shareholders will not be required to deduct and withhold any amount pursuant to Section 7121 1445(a) of the Code upon the transfer of any cash or any similar provision under any other Law.property pursuant to this Agreement;
(fxi) To each of SANZ and its Subsidiaries has provided to Sun true, correct and complete copies of all Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any of SANZ or its Subsidiaries for the Knowledge past three (3) years; and
(xii) none of Stewardship, no additional Taxes SANZ or its Subsidiaries will be assessed against required to include any item of the Stewardship Entities income in, or exclude any item of deduction from, taxable income for any Tax taxable period (or portion thereof thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any Closing Date under Section 481(c) of the Stewardship Entities.
Code (g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole corresponding or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions similar provision of state, local or foreign income Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(llaw), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or ; (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations “closing agreement” as described in Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) 7121 of the Code (as or any corresponding or similar provision of state, local or foreign income Tax law); (iii) deferred intercompany gain or any excess loss account described in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Treasury Regulations under Section 168(h) 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law); or (iiiiv) “tax-exempt bond financed property” within installment sale made prior to the meaning of Section 168(g)(5) of the CodeClosing Date.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Merger Agreement (San Holdings Inc)
Tax Matters. (i) Except as set forth on the attached LISN Taxes Schedule:
(a) Each of the Stewardship Entities (i) has timely LISN and its Subsidiaries have filed or has had timely filed on its behalf (taking into account any extension of time within all Tax Returns which to file) each Return it is required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects file under applicable laws and accurately reflected any material Liability for Taxes of the relevant Stewardship Entityregulations, and any Affiliate of all such entity, covered by such Return, Tax Returns are complete and correct and have been prepared in compliance with all applicable laws and regulations;
(iib) timely LISN and properly its Subsidiaries have paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owing by it (whether or not such Taxes are shown or required to be shown on such Returns, (iiia Tax Return) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due has withheld and payable and (iv) complied in all material respects with all applicable Laws relating paid over to the withholding of appropriate taxing authority all Taxes and the payment thereof in connection with any which it is required to withhold from amounts paid or owing to any employee, independent contractor, creditorshareholder, shareholder creditor or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.;
(c) There are no Encumbrances for Taxes upon any assets of neither LISN nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries has requested waived any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreed to any Taxes or extension of time for filing any Tax Return of which has not been filed; and neither LISN nor any of its Subsidiaries has consented to extend to a date later than the Stewardship Entities for date hereof the period in which any Tax may be assessed or collected by any Taxing Authority;
(d) the accrual for Taxes on the LISN Latest Balance Sheet would be adequate to pay all Tax liabilities of LISN and its Subsidiaries if its current tax year subsequent were treated as ending on the date of the LISN Latest Balance Sheet (excluding any amount recorded which is attributable solely to the year ended timing differences between book and Tax income);
(e) since December 31, 20151998, neither LISN nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of its Subsidiaries has incurred any liability for Taxes other than in the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge ordinary course of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.business;
(f) To the Knowledge federal income Tax Returns of StewardshipLISN and its Subsidiaries have not been audited and are open for all tax years after December 31, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.1996;
(g) Schedule 4.20(g) lists all no foreign, federal, state, state or local and foreign income Returns filed tax audits or administrative or judicial Tax proceedings are pending or being conducted with respect to the Stewardship Entities for taxable periods ended on LISN or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject any of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.its Subsidiaries;
(h) To the Knowledge neither LISN nor any of Stewardshipits Subsidiaries has received from any foreign, none federal, state or local taxing authority (including jurisdictions where LISN or any of the Stewardship Entities its Subsidiaries has filed Tax Returns) any Liability (i) written notice indicating an intent to open an audit or other review, (ii) request for Taxes information related to Tax matters or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted or assessed by any taxing authority against LISN or any of its Subsidiaries;
(i) no claim has ever been made by a taxing authority in a jurisdiction where it does LISN or any of its Subsidiaries do not file a Return, nor has Tax Returns that LISN or any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is its Subsidiaries are or may be subject to taxation Taxes assessed by that such jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.;
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to neither LISN nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) its Subsidiaries has been a member of an affiliated group filing a consolidated Return Affiliated Group (other than a group the common parent of which was StewardshipLISN);
(k) neither LISN nor any of its Subsidiaries is a party to or bound by any Tax allocation or Tax sharing agreement;
(l) there are no Liens for Taxes (other than Permitted Encumbrances) upon the assets of LISN or any of its Subsidiaries; and
(m) neither LISN nor any of its Subsidiaries shall be required to (i) as a result of a change in method of accounting for a taxable period ending on or prior to the Closing Date, include any adjustment in taxable income for any taxable period (or portion thereof) ending after the Closing Date, (ii) as a result of any "closing agreement," as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign income Tax law) executed on or before the Closing Date, include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, (iii) as a result of any sale reported on the installment method where such sale occurred on or prior to the Closing Date, include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, or (iv) as a result of any prepaid amount received on or prior to the Closing Date, include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date; and
(ii) Neither LISN nor any of its Subsidiaries:
(a) has any Liability made an election under Section 341(f) of the Code;
(b) is presently liable for the Taxes of any another Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(uLISN and its Subsidiaries), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Natg Holdings LLC)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 4.27, (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Returns required to be filed or sent by it to with any Taxing Authority on or before the Closing Date by or on behalf of or with respect to the Seller have been or will be timely filed in respect of any Taxes, each of which was correctly completed in accordance with all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnapplicable laws, (ii) timely as of the time of filing, the Returns were prepared, or will have been prepared, in accordance with the appropriate books of account and properly paid (correctly reflect, or had paid on its behalf) all Taxes due will correctly reflect, the facts regarding the income, business, assets, operations, activities and payable for all Tax periods or portions thereof whether or not status of the subject parties and any other information required to be shown on such Returnstherein, (iii) established all Taxes that have been shown as due and payable on the Returns that have been filed have been paid in a timely manner, (iv) the charges, accruals and reserves for taxes reflected on the books of account the Seller and its financial statements are adequate to cover the Tax liabilities accruing or payable in respect of Taxable Years ending on or before the Closing Date and any Short Period, (v) all Returns with respect to federal income taxes filed with respect to Taxable Years of the Stewardship EntitiesSeller through the Taxable Year ended 1997 have been examined and closed or are Returns with respect to which the period during which any Tax due may be properly assessed under applicable law has expired without extension or waiver, (vi) the Seller is not delinquent in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to Tax nor has the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has Seller requested any extension of time within which to file any Return, which Return has not since been timely filed.
, (evii) No no deficiency for any Tax or claim for additional Taxes by any Taxing Authority has been proposed, asserted or assessed against any of the Stewardship Entities that Seller, (viii) the Seller has not been resolved and paid in full. No waiver, granted any extension or comparable consent given by any of the Stewardship Entities regarding the application waiver of the statute of limitations with respect limitation period applicable to any Taxes Returns, which extension or any Return waiver is outstandingcurrently in effect, nor (ix) there is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e)no audit, there has been no Tax audit or other administrative action, suit, claim, proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, noror, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any knowledge of the Returns of Seller, any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code investigation or any similar provision under any other Law.
(f) To the Knowledge of Stewardshipinquiry, no additional Taxes will be assessed whether formal or informal, public or private, now pending or threatened against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31Seller in respect of any Tax, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(hx) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of property owned or used by the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that Seller is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate a tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required benefit transfer lease executed in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954 and (as in effect prior to amendment by xi) there are no liens for Taxes upon the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) assets of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the CodeSeller except liens for current Taxes not yet due.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of Except as set forth on Schedule 5.11(a), the Stewardship Entities Seller and each other entity included in any consolidated, combined or unitary Tax Return or in any group filing in which the Seller is or has been a member, (i) has have timely paid all income Taxes and all other Taxes (other than immaterial non-income Taxes) required to be paid by them through the date hereof (including any Taxes shown due on any Tax Return) and (ii) have filed or has had caused to be filed in a timely filed on its behalf manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Income Tax Returns and all other Tax Returns (other than immaterial non-income Tax Returns) required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed them with the appropriate Governmental Authorities in all material respects jurisdictions in which such Tax Returns are required to be filed, and accurately reflected any material Liability for all such Tax Returns are true and complete. The unpaid Taxes of the relevant Stewardship EntitySeller (x) did not, as of the date of the Latest Balance Sheet, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Latest Balance Sheet (rather than in any Affiliate notes thereto) and (y) will not exceed that reserve as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of such entity, covered by such Return, the Seller in filing its Tax Returns.
(b) Except as set forth on Schedule 5.11(b):
(i) no Liens have been filed with respect to any Taxes of the Seller and no waivers of statutes of limitations have been given or requested with respect to the Seller;
(ii) timely there are no pending Tax audits or controversies relating to the Seller or any of its Tax Returns nor has the Seller been notified by any taxing authority that any issues have been raised (and properly paid (are currently pending) in connection with the Seller or had paid on its behalf) all Taxes due and payable for all any Tax periods or portions thereof whether or not shown on such Returns, Return of the Seller;
(iii) established on the books Seller and each of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) its predecessors has complied in all material respects with all applicable Laws relating to the collection or withholding of Taxes (such as sales Taxes, customs duties or withholding of Taxes from the wages of employees) and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has Seller is not since been filed.
(e) No deficiency liable for any Taxes for failure to comply with such Laws;
(iv) the Seller is not now nor has it been proposed, asserted a party to or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given bound by any of Tax sharing, allocation or distribution agreement;
(v) the Stewardship Entities regarding Seller has no obligation to make (or possibly make) any payments that will be non-deductible under, or would otherwise constitute a “parachute payment” within the application of the statute of limitations with respect to any Taxes or any Return is outstandingmeaning of, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 280G of the Code (or any similar corresponding provision under any other Law.of state, provincial, local or foreign income Tax law);
(fvi) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of Seller is not directly or indirectly responsible for the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any other Person; and
(vii) A valid and timely election has been in effect under Section 1362 of the Stewardship Entities.
Code (gand comparable provisions of state and local law) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to treat the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, Seller as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any an “excess parachute paymentsS corporation” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) 1361 of the Code (and comparable provisions of state and local law) for its entire existence. Neither the Seller nor any of its existing shareholders or former shareholders has taken any action that would terminate or did terminate the Seller’s S corporation election. The Seller’s status as in effect prior an S corporation shall continue up to amendment by and including the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the CodeClosing Date.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. All income Tax returns of every nature required by ----------- any Governmental Body to be filed by Seller or which include or should include Seller (a"Tax Returns") Each of have been filed for all periods ending on or before the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which Closing Date to file) each Return the extent required to be filed by such date, (b) all income Taxes shown to be due and payable on such Tax Returns or sent by it on any assessments related to any Taxing Authority in respect of any Taxessuch Tax Returns have been paid, each of which was correctly completed in (c) all material respects such Tax Returns and accurately reflected any material Liability for Taxes of reports and the relevant Stewardship Entityinformation and data contained therein fairly present the information required to be shown therein, and any Affiliate reflect all income Tax liabilities of such entity, Seller for the periods covered by such ReturnTax Returns, (d) except as specifically disclosed to the Purchaser in writing, Seller has no unpaid liability for any income Taxes of any nature whatsoever for any period prior to the Closing Date, and (e) except as Seller has specifically disclosed to the Purchaser in writing, (i) the Tax Returns of Seller or that include Seller have not been audited, and are not now under audit, by any Governmental Body, and (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returnsthere are no agreements, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder waivers or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances arrangements providing for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any an extension of time within which with respect to file the assessment of any Return, which Return has not since been filed.
(e) No deficiency for income Taxes of any Taxes has been proposed, asserted nature against Seller or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Tax Return filed by Seller or that includes Seller, or any Return is outstanding, nor is any request for any such waiver Claims now pending or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information against Seller with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for income Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on nature against Seller or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any Tax Return filed by Seller or that includes Seller, or any Claims now pending or threatened against Seller with respect to any income Taxes or any matters under discussion with any Governmental Body relating to any income Taxes, or any claims for additional income Taxes asserted by any Governmental Body. Purchaser acknowledges that Tax Returns of the Stewardship Entities which would be binding following the Effective Time, constituent partners of Seller are included in a consolidated return of their ultimate parent entity and no that such agreements or rulings have been applied for by any Stewardship Entity Tax Returns are routinely audited and are currently pending.
(l) Except as set forth on Schedule 4.20(l)being audited by the IRS and two state departments, none and agrees that such audits are not within the scope of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions representation and warranty contained in ordinary course commercial agreements or other arrangements that are not primarily related to Taxesthis Section 6.01(j).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each WABC and each WABC Subsidiary have timely filed federal income tax returns for each year through December 31, 1995 and have timely filed, or caused to be filed, all other federal, state, county, local and foreign tax returns (including, without limitation, estimated tax returns, returns required under sections 1441-1446 and 6031-6060 of the Stewardship Entities (iCode and the regulations thereunder and any comparable state, foreign and local laws, any other information returns, withholding tax returns, FICA and FUTA returns and back up withholding returns required under section 3406 of the Code and any comparable state, foreign and local laws) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed with respect to WABC or sent any WABC Subsidiary, including, without limitation, estimated tax, use tax, excise tax, real property and personal property tax reports and returns, employer's withholding tax returns, other withholding tax returns and Federal Unemployment Tax Returns, and all other reports or other information required to be filed by it each of them, and each such return, report or other information is complete and accurate in all material respects. All taxes, fees and other governmental charges, including any interest and penalties thereon, due in respect of the periods covered by such tax returns have been paid or adequate reserves have been established for the payment of such amounts, except where any such failure to pay or establish adequate reserves, except those that are being contested in good faith, which contested matters existing as of the date hereof have been disclosed to ValliCorp in writing and through the Effective Date any Taxing Authority other contested matters will have been disclosed to ValliCorp in writing, and, as of the Effective Date, all taxes due in respect of any Taxessubsequent periods ending on or prior to the Closing Date will have been paid or adequate reserves will have been established for the payment thereof. WABC or the WABC Subsidiaries have not been requested to give any currently effective waivers extending the statutory period of limitation applicable to any tax return required to be filed by any of them for any period and, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes as of the relevant Stewardship Entity, date of this Agreement and the Effective Date (except as disclosed to ValliCorp in writing with respect to occurrences after the date hereof) (A) there are no claims pending against WABC and the WABC Subsidiaries for any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, alleged deficiency in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes taxes, and, except as Previously Disclosed, WABC does not then due and payable know of any pending or threatened audits, investigations or claims for unpaid taxes or relating to any liability in respect of any taxes; and (ivB) complied in all material respects with all applicable Laws relating to the withholding knowledge of Taxes WABC, there have been no events, including a change in ownership, that would result in a reappraisal and establishment of a new base-year full value for purposes of Articles XIII.A of the California Constitution, of any real property with a book value in excess of $250,000 owned in whole or in part by WABC and the payment thereof WABC Subsidiaries or to the best of WABC's knowledge, of any real property with aggregate remaining lease payments of $250,000 or more leased by WABC and the WABC Subsidiaries. Neither WABC nor any WABC Subsidiary will have any liability for any such taxes in connection with any excess of the amounts so paid or owing to any employee, independent contractor, creditor, shareholder reserves or other third partyaccruals so established.
(b) Each of Neither WABC nor any WABC Subsidiary is delinquent in the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets payment of any of the Stewardship Entitiesmaterial tax, assessment or governmental charge, and, except Permitted Encumbrances.
(d) None as Previously Disclosed, none of the Stewardship Entities them has requested any extension of time within which to file any Return, tax returns in respect of any fiscal year or portion thereof which Return has have not since been filed.
(e) . No deficiency material deficiencies for any Taxes has tax, assessment or governmental charge have been proposed, asserted or assessed (tentatively or otherwise) against WABC or any of the Stewardship Entities that has WABC Subsidiary which have not been resolved settled and paid in full. No waiver, extension paid.
(c) WABC has made or comparable consent given by any will make available to ValliCorp copies of all its and the Stewardship Entities regarding the application of the statute of limitations WABC Subsidiaries' tax returns with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent taxes payable to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any United States of America and the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge State of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions California for the fiscal years ended December 31, 20151995, 2016 1994, 1993, 1992 and 2017 have been provided or made available to Columbia1991.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(kd) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank consent has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(iifiled relating to WABC pursuant to section 341(f) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Vallicorp Holdings Inc)
Tax Matters. (a) Each of Except as would not, individually or in the Stewardship Entities aggregate, reasonably be expected to have a Seaways Material Adverse Effect:
(i) has all Tax Returns that are required to be filed by or with respect to Seaways or any of its Subsidiaries have been timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity), and any Affiliate all such Tax Returns are true, complete and accurate. Seaways has made available to Diamond true and correct copies of all such entity, covered by such Return, income or franchise Tax Returns for the three (3) year period preceding the Closing Date;
(ii) Seaways and its Subsidiaries have timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owing by any of them, including any Taxes required to be withheld from amounts owing to any Person (in each case, whether or not shown on such Returnsany Tax Return), (iii) other than Taxes that are being contested in good faith through appropriate proceedings and for which adequate reserves have been established on the books of account of the Stewardship Entities, in accordance with GAAP on the financial statements of Seaways and consistent its Subsidiaries, and have complied with past practicesall reporting requirements (including maintenance of required records with respect thereto) with respect to such payments;
(iii) since the date of Seaways’ last audited financial statements, adequate reserves neither Seaways nor any of its Subsidiaries has incurred liability for Taxes outside its ordinary course of business, and the consolidated balance sheet (or the notes thereto) as of December 31, 2020 included in the Seaways SEC Documents properly reflects the accrual of the Tax liability of Seaways and its Subsidiaries with respect to the period between the last audited financial statements and such date.
(iv) neither Seaways nor its Subsidiaries is delinquent in the payment of any Taxes Tax, nor is there any Tax deficiency outstanding, assessed or proposed. There is not then due and payable and (iv) complied pending, or threatened in all material respects writing, any audit, examination, investigation or other proceeding with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing respect to any employee, independent contractor, creditor, shareholder Taxes of Seaways or other third party.any of its Subsidiaries;
(bv) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of neither Seaways nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries has requested waived any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Taxes, or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreed to any Taxes or any Return extension of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information time with respect to a Tax assessment or deficiency;
(vi) neither Seaways nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (within the Returns meaning of any Section 355(a)(1)(A) of the Stewardship Entities. None Code) in a distribution of the Stewardship Entities has entered into a closing agreement pursuant stock intended to qualify for tax-free treatment under Section 7121 355 of the Code (or any similar provision under any other of U.S. state, local, or non-U.S. Law.
) in the three (f3) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or years prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge date of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.this Agreement;
(gvii) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have no claim has been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in writing by a tax authority in a jurisdiction where it any of Seaways or its Subsidiaries does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in Tax Returns that such a jurisdiction that it Person is or may be subject to taxation by that jurisdiction.;
(iviii) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by neither Seaways nor any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities its Subsidiaries will be required to include any item of income in a taxable period ending after income, or exclude any item of deduction from taxable income, or make any adjustment under Section 481 of the Effective Time taxable Code (or any corresponding provision of U.S. state, local or non-U.S. income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized Tax Law) for Tax purposes in such prior any taxable period (or to exclude from taxable income in a taxable period portion thereof) ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) Closing Date as a result of (A) any installment sale, intercompany transaction described in the installment method Treasury Regulations under Section 1502 of accounting, the completed contract method Code (or any corresponding provision of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of U.S. state, local or foreign non-U.S. income Tax Law.), or open transaction disposition made by Seaways or any of its Subsidiaries on or prior to the Closing Date, (B) any prepaid amount received by Seaways or any of its Subsidiaries on or prior to the Closing Date, (C) any “closing agreement,” as described in Section 7121 of the Code (or any corresponding provision of U.S. state, local or non-U.S. income Tax Law) entered into on or prior to the Closing Date, (D) any “gain recognition agreement” or “domestic use election” (or analogous concepts under U.S. state, local or non-U.S. income Tax Law), (E) a change in the method of accounting by Seaways or any of its Subsidiaries for a period ending prior to or including the Closing Date, or (F) election under Section 965 of the Code (or any corresponding provision of U.S. state, local or non-U.S. income Tax Law). Neither Seaways nor any of its Subsidiaries has deferred, pursuant to the CARES Act or the Presidential Memorandum Deferring Payroll Tax Obligations dated August 8, 2020, any Taxes which have not been paid;
(kix) No closing agreements, private letter rulings none of Seaways or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
its Subsidiaries is (lA) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
, (mB) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability is liable for the Taxes of any other Person (other than Stewardship or Stewardship BankSeaways and its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar corresponding provision of U.S. state, local or non-U.S. income Tax Law), ) or as a transferee or successor, successor or by ContractContract (other than any customary Tax indemnification provisions in ordinary course commercial agreements or arrangements that are not primarily related to Taxes), or otherwise.(C) has, since December 1, 2016, been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is Seaways or any of its Subsidiaries;
(ox) None there are no Liens for Taxes upon any property or assets of Seaways or any of its Subsidiaries, except for the Permitted Liens; and
(xi) for U.S. federal income Tax purposes, Seaways is treated as a corporation that is not, and was not since Seaways’ taxable year that included December 1, 2016, a “controlled foreign corporation” within the meaning of section 957 of the Stewardship Entities constitutes either a “distributing corporation” Code or a “controlled corporationpassive foreign investment company” (within the meaning of Section 355(a)(1)(A) 1297 of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that . In addition, Seaways is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4Tnot, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment will not as a result of the transactions contemplated by under this Agreement that would not be deductible under Section 404 or 162(m) become, subject to the requirements of section 7874 of the CodeCode as an “expatriated entity”.
(uxii) Except as set forth on Schedule 4.20(u), none neither Seaways nor any of the Stewardship Entities its Subsidiaries has been a member of entered into any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use propertyreportable transaction” within the meaning of U.S. Treasury Regulations Section 168(h1.6011-4(b) (or any similar provision of the Code U.S. state, local or (iii) “taxnon-exempt bond financed property” within the meaning of Section 168(g)(5) of the CodeU.S. Law).
(wb) None Neither Seaways nor any of the Indebtedness its Subsidiaries has knowingly taken any action or knows of any Stewardship Entity constitutes fact or circumstance that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(ic) “corporate acquisition indebtedness” (as defined Notwithstanding anything to the contrary in this Agreement, the representations and warranties set forth in this Section 279(b) of 4.13, Section 4.2 and Section 4.9 are the Code) sole representations and warranties with respect to which any interest deductions may be disallowed under Section 279 Tax matters of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, Seaways and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Codeits Subsidiaries.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return All Tax Returns that are required to be filed by or sent by it with respect to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects Village Financial and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Returnits Subsidiaries have been duly filed, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returnshave been paid in full, (iii) established on the books of account Tax Returns referred to in clause (i) have been examined by the Internal Revenue Service or the appropriate state, local or foreign taxing authority or the period for assessment of the Stewardship EntitiesTaxes in respect of which such Tax Returns were required to be filed has expired, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied all deficiencies asserted or assessments made as a result of such examinations have been paid in all material respects with all applicable Laws relating to full, (v) no issues that have been raised by the withholding of Taxes and the payment thereof relevant taxing authority in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets examination of any of the Stewardship EntitiesTax Returns referred to in clause (i) are currently pending, except Permitted Encumbrances.
(dvi) None no waivers of the Stewardship Entities has requested any extension statutes of time within which to file any Return, which Return has not since limitation have been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations or requested with respect to any Taxes of Village Financial or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth its Subsidiaries; (vii) there are no Liens on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities assets of Village Financial or its Subsidiaries that arose in connection with any failure to pay a Tax (other than Taxes not yet due and payable); (viii) to the knowledge of Village Financial, no authority is expected to assess any additional Taxes for any period for which Tax year subsequent Returns have been filed; and (ix) there is no dispute or claim concerning any Tax liability of Village Financial either (A) claimed or raised by any authority in writing or (B) as to the year ended December 31, 2015, which Village Financial has knowledge. Neither Village Financial nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by its Subsidiaries has any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information liability with respect to any income, franchise or similar Taxes that accrued on or before the end of the Returns of any most recent period covered by Village Financial’s SEC Documents filed prior to the date hereof in excess of the Stewardship Entities. None of amounts accrued with respect thereto that are reflected in the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending financial statements included in Village Financial’s SEC Documents filed on or prior to the Effective Time that will exceed date hereof. As of the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardshipdate hereof, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of neither Village Financial nor any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities its Subsidiaries has any Liability for Taxes in reason to believe that any conditions exist that might prevent or impede the Merger from qualifying as a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” reorganization within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii368(a) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Merger Agreement (Village Bank & Trust Financial Corp.)
Tax Matters. (a) Each ECNC and ach of the Stewardship Entities its Subsidiaries (i1) has timely filed all nonconsolidated and noncombined Tax Returns and all consolidated or has had timely filed on combined Tax Returns that include only ECNC and/or its behalf Subsidiaries and not Seller or its other Affiliates (taking into account any extension for the purposes of time within which to filethis Section 6.18, such tax returns shall be considered nonconsolidated and noncombined Tax Returns) each Return required to be filed or sent through the date hereof and has paid any Tax due through the date hereof with respect to the time periods covered by such nonconsolidated and noncombined Tax Returns and shall timely pay any such Taxes required to be paid by it after the date hereof with respect to any Taxing Authority such Tax Returns and (2) shall prepare and timely file all such nonconsolidated and noncombined Tax Returns required to be filed after the date hereof and through the Closing Date and pay all Taxes required to be paid by it with respect to the periods covered by such Tax Returns; (B) all such Tax Returns filed pursuant to clause (A) after the date hereof shall, in respect of any Taxeseach case, each of which was correctly completed be prepared and filed in a manner consistent in all material respects (including elections and, accounting methods and accurately reflected any material Liability for Taxes of conventions) with such Tax Return most recently filed in the relevant Stewardship Entityjurisdiction prior to the date hereof, and except as otherwise required by law or regulation. Any such Tax Return filed or required to be filed after the date hereof shall not reflect, any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (new elections or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment adoption of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating new accounting methods or conventions or other similar items, except to the withholding of Taxes and the payment thereof in connection extent such particular reflection or adoption is required to comply with any amounts paid law or owing to any employee, independent contractor, creditor, shareholder or other third partyregulation.
(b) Each of the Stewardship Entities has made All consolidated or combined Tax Returns (or caused except those described in subparagraph (a) above) required to be made on its behalf) all estimated Tax payments filed by any person through the date hereof that are required or permitted to include Subsidiaries for any taxable period have been made timely filed, and the income, activities, operations and transactions of ECNC and Subsidiaries have been properly included and reflected thereon. ECNC shall prepare and file, or cause to avoid be prepared and filed, all such consolidated or combined Tax Returns that are required or permitted to include the income, or reflect the activities, operations and transactions, of ECNC or any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship EntitiesSubsidiary, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes taxable year or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves Closing Date, including, without limitation, ECNC's consolidated federal income tax return for such Taxes established by taxable years. ECNC will timely file a consolidated federal income tax return for the Stewardship Entitiestaxable year ended December 31,1999 and such return shall include and reflect the income, activities, operations and transactions of ECNC and Subsidiaries for the taxable period then ended, and hereby expressly covenants and agrees to file a consolidated federal income tax return, and to include and reflect thereon the income, activities, operations and transactions of ECNC and Subsidiaries for the taxable period through the Closing Date. To All Tax Returns filed pursuant to this subparagraph (b) after the Knowledge of Stewardshipdate hereof shall, there are no unresolved questionsin each case, claims to the extent that such Tax Returns specifically relate to ECNC or disputes concerning the Liability for Taxes of any of its Subsidiaries and do not generally relate to matters affecting other members of ECNC's consolidated group, be prepared and filed in a manner consistent in all material respects (including elections and accounting methods and conventions) with the Stewardship Entities.
(g) Schedule 4.20(g) lists Tax Return most recently filed in the relevant jurisdictions prior to the date hereof, except as otherwise required by law or regulation. ECNC has paid or will pay all federal, state, local and foreign income Returns filed Taxes that may now or hereafter be due with respect to the Stewardship Entities for taxable periods ended on covered by such consolidated or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local combined Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to ColumbiaReturns.
(hc) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, Neither ECNC nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it its Subsidiaries has agreed, or is or may be subject required, to taxation by that jurisdiction.
make any adjustment (ix) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code under Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2a) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part reason of a “plan” change in accounting method or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.otherwise or
Appears in 1 contract
Samples: Acquisition Agreement (Econnect)
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 3.14(a):
(i) neither Seller nor any Person to whose liabilities either Seller has succeeded has ever filed a consolidated Federal Income Tax Return or a consolidated, unitary or combined State Income Tax Return, or been included in any such Tax Return filed by another entity;
(ii) each Seller and any Person to whose liabilities either Seller has succeeded has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be have been filed by or sent by it to any Taxing Authority for it, and all information set forth in respect of any Taxes, each of which was correctly completed such Tax Returns is correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, respects;
(iii) each Seller and any Affiliate of such entity, covered by such Return, (ii) timely and properly Person to whose liabilities either Seller has succeeded has paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof by it (whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Tax Return);
(iv) complied in all material respects with all applicable Laws relating to neither Seller currently is the withholding beneficiary of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Return has not since been filed.;
(ev) No deficiency for any Taxes no claim has ever been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given made by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing a Governmental Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it either Seller does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it either Seller is or may be subject to taxation by that jurisdiction.;
(ivi) Except as set forth there are no Liens on Schedule 4.20(i), none any of the Stewardship Entities Purchased Assets that arose in connection with any failure (or alleged failure) to pay any Tax;
(vii) each Seller and any Person to whose liabilities either Seller has succeeded is a party in compliance with, and Sellers’ records contain all information and documents (including, without limitation, properly completed IRS Forms W-9) necessary to any Contract that would resultcomply with, separately all applicable Tax information reporting and Tax withholding requirements;
(viii) the Financial Statements and the Final Balance Sheet fully and properly reflect, as of their dates, the liabilities of Sellers for all periods ending on or before such dates, and have been prepared in accordance with GAAP consistently applied throughout the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codeperiods indicated, and the consummation books and records of Sellers fully and properly reflect all liabilities for Taxes for all periods after the date of the transactions contemplated by this Agreement will not be a factor causing payments to be made by Financial Statements;
(ix) neither Seller has granted (nor is it subject to) any waiver currently in effect of the Stewardship Entities period of limitations for the assessment or collection of Tax, no unpaid Tax deficiency has been asserted against or with respect to either Seller or (insofar as either Seller may be liable therefor) any other Person that are not deductible (in whole to whose liabilities either Seller has succeeded, and there is no pending examination, administrative or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (judicial proceeding, or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingdeficiency or refund litigation, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any Taxes of the Stewardship Entities either Seller or for which would either Seller may be binding following the Effective Timeliable;
(x) neither Seller has made or entered into, and no such agreements or rulings have been applied for by does not hold any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l)asset subject to, none of the Stewardship Entities is a party consent filed pursuant to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of former Section 897(c)(2341(f) of the Code during and the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” regulations thereunder or a “controlled corporationsafe harbor lease” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Internal Revenue Code (of 1954, as in effect prior to amendment by amended before the Tax Reform Act of 1986)1984, (ii) and the regulations thereunder, nor does either Seller hold any asset that is “tax-exempt use property” property “ within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.;
(wxi) None none of the Indebtedness Assumed Liabilities is an obligation to make a payment that is not deductible under Section 280G of the Code;
(xii) none of the Assumed Liabilities is an obligation to make a payment under any Stewardship Entity constitutes Tax sharing, Tax allocation, or Tax indemnity agreement;
(ixiii) “corporate acquisition indebtedness” each Seller has disclosed on their federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of the Code
(xiv) neither Seller is nor would be treated as a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code and the Treasury Regulation thereunder) for purposes of Section 279(b897(a) of the Code;
(xv) with respect neither Seller nor any Person to whose liabilities either Seller has succeeded has engaged in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or any predecessor regulation, and each Seller has properly disclosed in its Federal Income Tax Returns all “reportable transactions” within the meaning of Treasury Regulations § 1.6011-4(b)(1), any predecessor regulation, or any similar provision of state or foreign Law;
(xvi) neither Seller has received any private letter ruling from the Internal Revenue Service (or any comparable ruling from any other taxing authority;
(xvii) the income Tax Returns of each Seller, copies of which have been provided to Buyer, accurately set forth the amounts of all losses and Tax credits available to be carried forward, and none of such losses or credits is subject to any interest deductions may be disallowed limitation under Section 279 382 or 383 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of federal, state or foreign Law;
(xviii) neither Seller will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Code.Closing Date as a result of any (A) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or foreign income Tax Law) executed on or prior to the Closing Date, (B) installment sale or open transaction disposition made on or prior to the Closing Date, or (C) prepaid amount received on or prior to the Closing Date;
Appears in 1 contract
Samples: Asset Purchase Agreement (Armada Hoffler Properties, Inc.)
Tax Matters. (a) Each of the Stewardship Entities (i) Purchaser:
(A) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(B) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, Purchaser and each of which was correctly Purchaser Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.respects; and
(bC) Each of the Stewardship Entities has made (not requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eii) No deficiency Purchaser has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Purchaser through the date hereof for the periods ending after December 31, 2007.
(A) Since January 1, 2007, Purchaser has not been notified by the IRS or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Purchaser or any Purchaser Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Purchaser or any Purchaser Tax Affiliate (for years that it was a Purchaser Tax Affiliate); no Tax liens have been filed against Purchaser or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Purchaser or any Return is outstanding, nor is any request Purchaser Tax Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was a Purchaser Tax Affiliate), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fB) To Full and adequate accrual has been made (i) on the Knowledge Purchaser Balance Sheet, and the books and records of Stewardship, no additional Purchaser for all income Taxes will be assessed against any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Purchaser for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Purchaser Balance Sheet Date, and (ii) on the estimated reserves books and records of Purchaser and for such all Taxes established payable by Purchaser for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship EntitiesPurchaser Balance Sheet Date.
(gC) Schedule 4.20(gPurchaser has not incurred any liability for Taxes from and after the Purchaser Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices.
(D) lists Purchaser has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code.
(E) Purchaser has complied in all federalmaterial respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees).
(F) Purchaser has no liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Purchaser has been bound have been terminated.
(G) Purchaser has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
(1) shall be non-deductible under, state, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state local and or foreign income Returns filed with respect Tax Law); or
(2) are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code.
(H) Purchaser has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbiaaccounting methods of Purchaser.
(hI) To No claim has been made within the Knowledge of Stewardship, none of the Stewardship Entities has last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Purchaser does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Purchaser is or may be subject to taxation by that jurisdiction.
(iJ) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the The consummation of the transactions contemplated by this Agreement Share Exchange will not be trigger the realization or recognition of intercompany gain or income to Purchaser under the Federal consolidated return regulations with respect to Federal, state or local Taxes.
(K) Purchaser is not currently, nor has it been at any time during the previous five years, a factor causing payments to be made by any of “U.S. real property holding corporation” and, therefore, the Stewardship Entities or any other Person that Purchaser Common Stock is not “U.S. real property interests,” as such terms are not deductible (defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Share Exchange Agreement (CleanTech Innovations, Inc.)
Tax Matters. (a) Each of the Stewardship Entities (i) has All income and other material Tax Returns required to have been filed by Forza and each Forza Subsidiary under applicable Law have been timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed with the applicable Governmental Body. All such Tax Returns were correct and complete in all material respects and accurately reflected have been prepared in material compliance with all applicable Laws. No written claim has ever been made by any Governmental Body in a jurisdiction where Forza or any Forza Subsidiary does not file income or other material Liability for Tax Returns that it is subject to taxation by that jurisdiction in respect of Taxes of that would be the relevant Stewardship Entity, and any Affiliate subject of such entity, covered by such Return, Tax Returns.
(iib) timely and properly paid (or had paid on its behalf) all All material Taxes due and payable for all Tax periods owing by Forza or portions thereof any Forza Subsidiary (whether or not shown on such Returns, (iiiany Tax Return) established have been paid. The unpaid Taxes of Forza and any Forza Subsidiary for Tax periods ending on and including the date of the Forza Unaudited Interim Balance Sheet have been accrued and reserved for on the books of account of the Stewardship Entities, Forza Unaudited Interim Balance Sheet in accordance with GAAP GAAP. Since the date of the Forza Unaudited Interim Balance Sheet, neither Forza nor any Forza Subsidiary has incurred any Liability for Taxes outside the Ordinary Course of Business.
(c) Forza and consistent with past practices, adequate reserves for the payment of any each Forza Subsidiary have withheld and paid all Taxes not then due required to have been withheld and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) party and all estimated Tax payments Forms W-2 and 1099 required to with respect thereto have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrancesproperly completed and timely filed.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid “closing agreement” as described in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code (or any corresponding or similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign non-U.S. income Tax Law.
(k) No closing agreements), private letter rulings rulings, technical advice memoranda or similar written agreements or rulings have been entered into or issued by any Taxing Authority Governmental Body with respect to Forza or any Forza Subsidiary which agreement or ruling would be effective after the Closing Date.
(e) There are no material Encumbrances for Taxes (other than Taxes not yet due and payable or Taxes that are being contested in good faith and for which adequate reserves have been made on Forza Unaudited Interim Balance Sheet in accordance with GAAP) upon any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements assets of Forza or rulings have been applied for by any Stewardship Entity and are currently pendingForza Subsidiary.
(lf) Except as set forth on Schedule 4.20(l)No material deficiencies for Taxes with respect to Forza or any Forza Subsidiary have been claimed, none of the Stewardship Entities is a party to proposed or assessed by any Tax allocationGovernmental Body in writing, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements such deficiencies that have since been resolved. There are no pending (or, based on written notice, threatened) audits, assessments or other arrangements that are Legal Proceedings for or relating to any liability in respect of material Taxes of Forza or any Forza Subsidiary. Neither Forza nor any Forza Subsidiary has waived any statute of limitations in respect of Taxes, agreed to any extension of time with respect to a Tax assessment or deficiency or for filing any Tax Return which has not primarily related since been resolved or filed, or consented to Taxesextend the period in which Tax may be assessed or collected by any Tax authority (in each case, other than such extensions of time entered into in the Ordinary Course of Business).
(mg) Neither Stewardship nor Stewardship Bank Forza has not at any time been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(nh) None Neither Forza nor any Forza Subsidiary is a party to any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, or other similar agreement or arrangement, other than customary commercial Contracts the principal subject matter of the Stewardship Entities which is not Taxes.
(i) Neither Forza nor any Forza Subsidiary has ever been a member of an affiliated group filing a consolidated consolidated, combined or unitary Tax Return (other than a group the common parent of which was Stewardship) or (ii) is Forza). Neither Forza nor any Forza Subsidiary has any Liability for the Taxes of any Person (other than Stewardship or Stewardship BankForza and any Forza Subsidiary) under Treasury Regulations Section section 1.1502-6 (or any similar provision of Lawstate, local, or non-U.S. law), as a transferee or successor, by Contract, Contract or otherwiseotherwise (other than customary commercial Contracts the principal subject matter of which is not Taxes).
(oj) None Neither Forza nor any Forza Subsidiary (nor any predecessor of the Stewardship Entities constitutes either foregoing) has distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code (or any similar provision of state, local, or non-U.S. Law).
(k) Neither Forza nor any Forza Subsidiary has entered into any transaction identified as a “distributing corporationlisted transaction” for purposes of Treasury Regulations Section 1.6011-4(b)(2).
(l) Neither Forza nor any Forza Subsidiary (i) is or owns stock in a “controlled foreign corporation” as defined in Section 957 of the Code, (ii) is or owns stock in a “passive foreign investment company” within the meaning of Section 1297 of the Code, (iii) has been subject to Tax in any country other than its country of incorporation or formation by virtue of having a permanent establishment (within the meaning of Section 355(a)(1)(Aan applicable Tax treaty) or other place of the Code) business in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement such other country, or (iiiv) could otherwise constitute part of is or was a “plansurrogate foreign corporation” or “series of related transactions” (within the meaning of Section 355(e7874(a)(2)(B) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction or is a foreign corporation that is subject to disclosure treated as a U.S. corporation under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B7874(b) of the Code.
(tm) There is no ContractNeither Forza nor any Forza Subsidiary will be required to include any material item of income in, plan or arrangementexclude any material item of deduction from, including this Agreement, pursuant to which taxable income for any current Tax period (or former employee of any of portion thereof) ending after the Stewardship Entities would be entitled to receive any payment Closing Date as a result of any: (i) change in method of accounting for Tax purposes for a Tax period (or portion thereof) ending on or prior to the transactions contemplated by this Agreement that would not be deductible Closing Date; (ii) use of an improper or change in a method of accounting for a Tax period (or portion thereof) ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iv) intercompany transaction or excess loss account described in Treasury Regulations under Section 404 1502 of the Code (or 162(many similar provision of state, local or foreign Law) consummated or created on or prior to the Closing Date; (v) installment sale or open transaction disposition made on or prior to the Closing Date; (vi) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; or (vii) election under Section 108(i) of the Code (or any similar provision of state, local or foreign Law). Neither Forza nor any Forza Subsidiary has made any election under Section 965(h) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 4.10(a), (i) each of the La Grange Entities has timely filed or has had timely filed on its behalf (taking into account any extension of time within which when due, after giving effect to file) each Return applicable extensions, all material Tax Returns required to be filed with the IRS or sent by it to any Taxing Authority in respect of any Taxesother applicable taxing authority through the date hereof; (ii) all such Tax Returns are true, each of which was correctly completed complete and correct in all material respects and accurately reflected any material Liability for Taxes respects; (iii) each of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) La Grange Entities has timely and properly paid (or had paid on its behalf) has provided an accrual for all Taxes which are or have become due and payable for all Tax periods or portions thereof (whether or not shown on any such ReturnsTax Return), and has withheld and paid to the appropriate taxing authority any Tax that it is required by Applicable Law to withhold and pay to a taxing authority on or before the date hereof other than, in either case, those (iiix) established on the books of account which, if not paid, would not have a La Grange Material Adverse Effect or (y) which are being contested in good faith; (iv) no claim has been made by any taxing authority in a jurisdiction in which any of the Stewardship EntitiesLa Grange Entities does not currently file a Tax Return that it is or may be subject to Tax by such jurisdiction; (v) none of the La Grange Entities has entered into any agreement or arrangement with any tax authority that requires any of the La Grange Entities to take or refrain from taking any action; (vi) none of the La Grange Entities is a party to any agreement, in accordance with GAAP and consistent with past practiceswhether written or unwritten, adequate reserves providing for the payment of Taxes, payment of Tax losses, entitlements to refunds or similar Tax matters; and (vii) none of the La Grange Entities that is not a corporation has elected or will elect to be treated as a corporation. None of the La Grange Entities has any material liability for Taxes other than those incurred in the ordinary course of business and in respect of which adequate reserves are being maintained in accordance with GAAP. There are no material liens for Taxes upon any asset of any of the La Grange Entities except for liens arising as a matter of Applicable Law relating to current Taxes not then due and payable and (iv) complied yet due. There are no Taxes that will be imposed on any of the La Grange Entities in all material respects connection with all applicable Laws relating to the withholding execution of Taxes and this Agreement or the payment thereof Other Transaction Documents or in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (transaction contemplated hereby or caused to be made thereby. Except as set forth on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any Schedule 4.10(a), none of the Stewardship Entities, except Permitted Encumbrances.
(d) None La Grange Entities currently is the beneficiary of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Return has not since been filed.
(eb) No deficiency for any Taxes has been proposed, asserted Schedule 4.10(b) lists all federal or assessed against any of the Stewardship Entities that has not been resolved state income and paid in full. No waiver, extension or comparable consent given franchise Tax Returns filed by any of the Stewardship La Grange Entities regarding or any affiliated, consolidated, combined, unitary or similar group of which any La Grange Entity is or was a member on or after August 31, 1999 and on or before the application date hereof, (i) that are as of the statute date hereof the subject of limitations with audit, (ii) in respect to any Taxes or any Return is outstanding, nor of which there is any request for other suit, action, investigation or claim in progress by any such waiver taxing authority or consent pending. Except as set forth on Schedule 4.20(e), there (iii) in respect of which any issue has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities raised by any Taxing Authority regarding any such Tax audit or other proceeding, nor, taxing authority at an earlier time that is reasonably expected to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entitiesbe raised at a later time. None of the Stewardship La Grange Entities has entered into waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a closing agreement pursuant Tax assessment or deficiency or has received any notice from any taxing authority that it intends to Section 7121 conduct an audit or investigation thereof or is subject to any ruling of the Code or any similar provision under any other Lawtaxing authority.
(fc) To the Knowledge of Stewardship, no additional Taxes will be assessed against any None of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship La Grange Entities has made any Liability for Taxes in a jurisdiction where it does not file a Returnpayment, nor has is obligated to make any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is payment, or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract agreement that would result, separately or in the aggregate, in the under certain circumstances could obligate it to make any payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement that will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of under Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(ld) Except as set forth on Schedule 4.20(l4.10(d), since August 31, 1999, none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship La Grange Entities (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability liability for the Taxes of any Person (other than Stewardship or Stewardship Banka La Grange Entity) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.under
Appears in 1 contract
Samples: Contribution Agreement (Heritage Propane Partners L P)
Tax Matters. (a) Each of the Stewardship Entities (i) has timely (A) All Tax Returns that are required to be filed or has had timely filed on its behalf (taking into account any extension extensions of time within which to file) each Return by or with respect to Peninsula and its Subsidiaries have been duly filed, (B) all Taxes due have been paid in full, (C) the Tax Returns referred to in clause (A) have been examined by the Internal Revenue Service or the appropriate Tax authority or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired, (D) all deficiencies asserted or sent assessments made as a result of such examinations have been paid in full, (E) no issues that have been raised by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof taxing authority in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets examination of any of the Stewardship EntitiesTax Returns referred to in clause (A) are currently pending, except Permitted Encumbrances.
and (dF) None no waivers of the Stewardship Entities has requested any extension statutes of time within which to file any Return, which Return has not since limitation have been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations or requested with respect to any Taxes of Peninsula or any Return is outstanding, nor is any request for any such waiver or consent pendingits Subsidiaries. Except as set forth on Schedule 4.20(e), there Peninsula has been no Tax audit or other administrative proceeding or court proceeding with regard made available to any Taxes or any Return of any Western true and correct copies of the Stewardship Entities United States federal income Tax Returns filed by Peninsula and its Subsidiaries for any Tax year subsequent to each of the year three most recent fiscal years ended on or before December 31, 2015, 1997. Neither Peninsula nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by its Subsidiaries has any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information liability with respect to any income, franchise or similar Taxes that accrued on or before the end of the Returns of any most recent period covered by Peninsula's Regulatory Documents filed prior to the date hereof in excess of the Stewardship Entities. None of amounts accrued with respect thereto that are reflected in the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending financial statements included in Peninsula's Regulatory Documents filed on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entitiesdate hereof. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of Neither Peninsula nor any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities its Subsidiaries is a party to any Tax allocationallocation or sharing agreement, sharing, indemnity, is or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return or combined Tax returns (other than a group the common parent of which is or was StewardshipPeninsula) or (ii) otherwise has any Liability liability for the Taxes of any Person person (other than Stewardship Peninsula and its Subsidiaries). As of the date hereof, neither Peninsula nor any of its Subsidiaries has any reason to believe that any conditions exist that might prevent or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), impede the Merger from qualifying as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (reorganization within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) 368 of the Code.
(tii) There No Tax is no Contract, plan or arrangement, including this Agreement, required to be withheld pursuant to which any current or former employee of any Section 1445 of the Stewardship Entities would be entitled to receive any payment Code as a result of the transactions transfer contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the CodeAgreement.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Merger Agreement (Western Bancorp)
Tax Matters. (a) Each of the Stewardship Entities (i) Each Opto-tech Entity has timely filed, or has timely filed or has had timely filed on its behalf (taking into account any extension of time within which for extensions to file) each Return , all income and other material Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesthereby through the Closing Date. Such Tax Returns are true, each of which was correctly completed correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, each Opto-tech Entity has timely paid and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) discharged all Taxes due and payable for all Tax periods owed by or portions thereof with respect to such Opto-tech Entity (whether or not shown as due on such Tax Returns). Each Opto-tech Entity has withheld, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP collected and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating paid over to the withholding of appropriate Governmental Authorities all Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused required by Law to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets withheld or collected. No Opto-tech Entity is currently the beneficiary of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Return has not since been filed.
(eii) No deficiency Each Opto-tech Entity’s Liability for unpaid Taxes, whether to any Taxes has been proposedGovernmental Authority or to another Person (such as under a Tax sharing agreement), asserted or assessed against any (A) did not, as of the Stewardship Entities that has not been resolved and paid in full. No waiverLatest Balance Sheet Date, extension exceed the reserve for Tax Liability (excluding reserves for deferred Tax assets or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as deferred Tax Liabilities) set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any the face of the Stewardship Entities Latest Balance Sheet and (B) does not exceed that reserve as adjusted for any the passage of time through the Closing Date in accordance with the past custom and practice of such Opto-tech Entity in filing its Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fiii) To the Knowledge Each Opto-tech Entity has previously provided to Buyer correct copies of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any all Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities such Opto-tech Entity for all taxable periods ended on or after December 31, 2015, indicates those for which the applicable statute of limitations has not yet closed. None of such Tax Returns that have been audited audited, and indicates those Returns that none currently are the subject of audit, and there are no examination reports or statements of deficiencies assessed against or agreed to by such Opto-tech Entity for such taxable periods. True and complete copies No Opto-tech Entity has waived any statute of the Returns limitations in respect of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state Taxes or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party agreed to any Contract that would result, separately or in the aggregate, in the payment extension of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period time with respect to a taxable period prior to the Effective Time) as a result of the installment method of accountingTax assessment or deficiency, the completed contract method of accountingwhich waiver or agreement is still in effect. (iv)No action, the long-term contract method of accountingsuit, the cash method of accounting, Code Section 481 proceeding or Code Section 108(i) audit is pending against or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, Opto-tech Entity regarding Taxes and no such agreements action, suit, proceeding or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank audit has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) threatened against or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the CodeOpto-tech Entity regarding Taxes.
Appears in 1 contract
Samples: Quota Purchase Agreement
Tax Matters. (a) Each Except as set forth in Section 2.7 of the Stewardship Entities Disclosure Schedules:
(i) each Seller has timely filed or all income and other material Tax Returns with respect to the Purchased Assets that it was required to file prior to the date hereof (except those under valid extensions), and each Salient-Owned Subsidiary has had timely filed on its behalf all income and other material Tax Returns that it was required to file prior to the date hereof (taking into account any extension of time within which to fileexcept those under valid extensions). All such Tax Returns are true, correct and complete in all material respects;
(ii) all income and other material Taxes due and owing by each Return Seller and each Salient-Owned Subsidiary that have been required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof prior to the date hereof (whether or not shown on any Tax Return) have been paid by such ReturnsSeller or any Salient-Owned Subsidiary, as applicable;
(iii) established on no deficiency or proposed adjustment that has not been paid or resolved for any material amount of Tax has been asserted or assessed by any Taxing Authority in writing against (a) any Seller with respect to the books of account Purchased Assets or (b) any Salient-Owned Subsidiary as of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and date hereof;
(iv) complied in all material respects as of the date hereof, there are no ongoing or pending Tax audits or other Proceedings related to Taxes by any Taxing Authority against (a) any Seller with all applicable Laws relating respect to the withholding Purchased Assets or (b) any Salient-Owned Subsidiary;
(v) each of the Sellers and their Salient-Owned Subsidiaries have not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency (except for automatic extensions of time to file income Tax Returns obtained in the ordinary course of business);
(vi) each Seller and the payment thereof in connection each Salient-Owned Subsidiary has withheld and paid all Taxes required by applicable Law to be withheld with any respect to amounts paid or owing to any employee, independent contractor, creditor, shareholder independent contractor or other third party.;
(bvii) Each there are no Liens for Taxes (other than Permitted Liens) upon any of the Stewardship Entities has made (Purchased Assets or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any the assets of any of the Stewardship Entities, except Permitted Encumbrances.Salient-Owned Subsidiary;
(dviii) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes no written claim has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities made by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does each Salient-Owned Subsidiary has not file filed a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Return that it is or may be subject to taxation Tax by that such jurisdiction., nor has any such assertion been threatened in writing;
(iix) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities no Salient-Owned Subsidiary will be required to include any material items of income, or exclude any material items of deduction, in a taxable period ending (or portion thereof) beginning after the Effective Time taxable income attributable Closing Date as a result of (i) any change in accounting method for a Tax period beginning on or before the Closing Date and that was agreed to income that accrued prior to the Closing, (ii) an installment sale or open transaction arising in a taxable period (or portion thereof) ending on or before the Closing Date, (iii) any prepaid or deferred amount received on or prior to the Effective Time but was not recognized for Tax purposes Closing Date, or (iv) a “closing agreement” as described in such prior taxable period Section 7121 of the Code (or to exclude from taxable any corresponding or similar provision of state or local income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period Tax Law) executed prior to the Effective TimeClosing;
(x) as a result none of the installment method of accounting, the completed contract method of accounting, the longSalient-term contract method of accounting, the cash method of accounting, Code Owned Subsidiaries have participated in a “listed transaction” required to be disclosed pursuant to Treasury Regulations Section 481 or Code Section 108(i1.6011-4(b) or comparable provisions any predecessor thereof and any similar provision of state, local or foreign Tax Law.;
(kxi) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities each Salient-Owned Subsidiary (i) has not been a member of an affiliated group filing a consolidated consolidated, combined or unitary Tax Return (under federal, state, local or foreign Law other than a each such affiliated group the common parent of which was Stewardship) or it is presently a member, and (ii) has any no Liability for the Taxes of any Person (other than Stewardship the Sellers or Stewardship Bank) their Subsidiaries under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Law), as a transferee or successor, or by ContractContract (except, for the avoidance of doubt, any commercial Contracts or other agreements the principal purpose of which does not relate to Taxes);
(xii) none of the Salient-Owned Subsidiaries are a party to or bound by any Tax allocation, sharing, indemnity, or otherwise.similar agreement or arrangement providing for the payment of Taxes, payment for Tax losses, entitlements to refunds or similar Tax matters (except, for the avoidance of doubt, any agreements the principal purpose of which does not relate to Taxes);
(oxiii) None of each Salient-Owned Subsidiary has been, and at all times up to and including the Stewardship Entities constitutes either Closing Date will be, properly characterized as a “distributing corporation” or a “controlled corporation” partnership for U.S. federal income Tax purposes (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011301.7701-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)3) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).and for applicable state and local income Tax purposes;
(qxiv) None of the Stewardship Entities no Salient-Owned Subsidiary has a “permanent establishment” in any country other than the United States, as such term is defined made an election under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B1101(g)(4) of the Code.Bipartisan Budget Act of 2015 to have the new partnership audit regime apply to any of its Tax Returns filed for a Pre-Closing Period prior to the effectiveness thereof;
(txv) There is no Contract, plan election has been made under applicable state or arrangement, including this Agreement, local income Law by or with respect to any Salient-Owned Subsidiaries pursuant to which a Salient-Owned Subsidiary will incur or otherwise be liable for any current state or former employee local income Tax liability under applicable state or local income Law that would have been borne (in whole or in part) by its direct or indirect equity owners had no such election been made (e.g., any “Specified Income Tax Payment” as defined by IRS Notice 2020-75); and
(xvi) each Salient-Owned Subsidiary has not claimed any delayed any payment of any of the Stewardship Entities would be entitled Tax or claimed any Tax benefit pursuant to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the CodeCOVID-19 Law.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each Except as otherwise set forth in Section 3.8 of the Stewardship Entities Company Disclosure Schedule (i) has the Company and each of its Subsidiaries have timely filed or has had timely filed on its behalf (taking into account any extension of time within which extensions to filefile that have been properly obtained) each Return all Tax Returns (as hereinafter defined) that they are required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entityhave filed, and any Affiliate of such entityall Tax Returns filed by the Company and its Subsidiaries are true, covered by such Returncorrect, and complete; (ii) the Company and each of its Subsidiaries has timely and properly paid (or had paid on its behalf) all Taxes that have become due and payable for all Tax periods or portions thereof (whether or not shown on such Returns, (iiia Tax Return) established on and have adequately reserved in the books of account of the Stewardship Entities, Company Financial Statements in accordance with GAAP for all Taxes (whether or not shown on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof; (iii) the Company and consistent with past practices, adequate reserves for the payment each of any Taxes not then due and payable and (iv) its Subsidiaries have complied in all material respects with all applicable Laws rules and regulations relating to the withholding of Taxes and the payment thereof remittance of withheld Taxes; (iv) the Company and its Subsidiaries have no present or contingent liability for Taxes, other than Taxes incurred in connection the ordinary course of business since the Company Balance Sheet Date in amounts consistent with any amounts paid or owing prior years adjusted to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each reflect changes in operating results of the Stewardship Entities has made Company and its Subsidiaries; (or caused to be made on its behalfv) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of neither the Company nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries has requested waived any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations in respect of its Taxes, which remains open; (vi) no claim for assessment or collection of Taxes is presently being asserted against the Company or any of its Subsidiaries, there is no presently pending audit, examination, refund claim, litigation, proceeding, proposed adjustment or matter in controversy with respect to any Taxes of or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on Company or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codeits Subsidiaries, and neither the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by Company nor any of the Stewardship Entities its Subsidiaries has knowledge that any such action or any other Person that are not deductible proceeding is being contemplated; (in whole vii) all deficiencies asserted or in part) assessments made as a result of any examination of such Tax Returns by any taxing authority have been paid in full or otherwise resolved, and the application Company has no knowledge of any basis upon which any additional material Tax deficiency could be asserted; (viii) no federal income Tax Return that was filed by the Company or its Subsidiaries contains, or was required to contain (in order to avoid a penalty, and determined without regard to the effect of post-filing disclosure), a disclosure statement under Section 280G 6662 of the Code.
; (jix) None of neither the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to Company nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements its Subsidiaries is or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
; (nx) None neither the Company nor any of its Subsidiaries is a party to or bound by any closing or other agreement with any Governmental Entity with respect to Taxes; (xi) neither the Company nor any of its Subsidiaries has agreed, and none is required to, make any adjustments pursuant to Section 481(a) of the Stewardship Entities Code or any similar provision of other law; (ixii) neither the Company nor any of its Subsidiaries has been a member of an affiliated group of corporations (within the meaning of Section 1504(a) of the Code) filing a consolidated Return federal income tax return (or a group of corporations filing a consolidated, combined, or unitary income tax return under comparable provisions of any other law) for any taxable period, other than a group the common parent of which was Stewardshipis the Company; (xiii) or (ii) neither the Company nor any of its Subsidiaries has any Liability for the obligation under any agreement or arrangement with any other person to pay any amount with respect to Taxes of any Person such other person (other than Stewardship or Stewardship Bank) under including pursuant to Treasury Regulations Section 1.1502-6 (or any similar comparable provision of Law)state, as local or foreign tax law) including any liability for Taxes of any predecessor entity; (xiv) neither the Company nor any of its Subsidiaries is a transferee party to any agreement, contract, arrangement or successorplan that has resulted or would result, by Contractseparately or in the aggregate, in connection with this Agreement or otherwise.
(o) None any change of control of the Stewardship Entities constitutes either a “distributing corporation” Company or a “controlled corporation” (any of its Subsidiaries, in the payment of any "excess parachute payments" within the meaning of Section 355(a)(1)(A280G of the Code; (xv) neither the Company nor any of its Subsidiaries has in effect an election under prior Section 341(f) of the Code; (xvi) there are no Liens for Taxes on any assets of the Company or any of its Subsidiaries, other than Liens for Taxes not yet due and payable; (xvii) neither the Company nor any of its Subsidiaries has distributed stock of another person, or has had its stock distributed by another person, in a distribution of shares qualifying for tax-free treatment under transaction purported or intended to be governed in whole or in part by Section 355 or 361 of the Code; (xviii) neither the Company nor any of its Subsidiaries has disposed of property in a transaction being accounted for under the installment method pursuant to Section 453 of the Code (or similar provisions of other laws), and neither the Company nor any of its Subsidiaries has taken any action inconsistent with its practices in prior years that would have the effect of deferring a liability for Taxes from a period prior to the Effective Time to a period following the Effective Time; (ixix) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of valid elections under Section 355(e83(b) of the Code) Code are in conjunction effect with the transactions contemplated by this Agreement.
(p) None respect to all each share of the Stewardship Entities has engaged in any transaction Company Capital Stock that is subject to disclosure under Treasury Regulation Section 1.6011-4 a risk of forfeiture or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within subject to a right of repurchase by the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None Company and is issued and outstanding as of the Stewardship Entities Effective Time; (xx) neither the Company nor any of its Subsidiaries is a party to any joint venture, partnership or other arrangement or contract that could be treated as a partnership for federal income tax purposes; (xxi) Section 3.8(a)(xxi) of the Company Disclosure Schedule sets forth (A) all elections pursuant to Treas. Reg. Section 301.7701-3 that have been made by business entities in which the Company or any Subsidiary owns an equity interest and (B) with respect to the Company and each of its Subsidiaries, whether such entity is engaged in business, has a “permanent establishment” establishment (as defined in any country other than the United States, as such term is defined under any an applicable Tax tax treaty between the United States and such other country.
jurisdiction) or is otherwise subject to Tax in a jurisdiction other than the United States, and identifies such jurisdiction with respect to each such entity; (rxxii) No power of attorney granted by neither the Company nor any of its Subsidiaries has owned or currently owns an interest in an entity that is not a United States person (as defined in the Stewardship Entities Code); and (xxiii) to the knowledge of the Company, there are no facts relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions Company or the Stockholders that could give rise to an underpayment of Tax (would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B368(a) of the Code.
(t) There is no Contract, plan or arrangement, including . For purposes of this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is : (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code."
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) Company and its Subsidiaries has timely filed filed, or has had caused to be timely filed on its behalf behalf, (taking into account any extension extensions of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed or on its behalf and all such Tax Returns are correct and complete in all material respects respects. The federal and accurately reflected state income or franchise Tax Returns of the Company and its Subsidiaries for the taxable year ended June 30, 2003 (the “2003 Income Tax Returns”) are in the process of being amended, and when such amended tax returns are filed, the amount of Taxes shown to be due on each of the amended 2003 Income Tax Returns will not vary in any material Liability respect from the amount of Taxes shown to be due on the corresponding 2003 Income Tax Return as originally filed. All Taxes shown to be due on such Tax Returns or otherwise required to be paid have been timely paid by each of the Company and its Subsidiaries. There are no Liens for Taxes upon any of the relevant Stewardship Entityassets of the Company or its Subsidiaries, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all other than Permitted Liens for Taxes not yet due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partypayable.
(b) Each The most recent financial statements contained in the Company SEC Documents reflect in accordance with GAAP an adequate reserve for all Taxes (excluding any reserve for deferred Taxes) payable by the Company and its Subsidiaries for all taxable periods and portion thereof through the date of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) such financial statements. No deficiency for any with respect to Taxes has been proposed, asserted or assessed against the Company or any of the Stewardship Entities its Subsidiaries, other than deficiencies that has not have been resolved and settled or paid in full. No waiver, extension or comparable consent given by any .
(c) The Federal Income Tax Returns of the Stewardship Entities regarding Company and each of its U.S. Subsidiaries have been examined by and settled with the application of IRS (or the applicable statute of limitations has expired) for all years through June 30, 1998. All assessments for Taxes due with respect to any Taxes such completed and settled examinations or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has concluded litigation have been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Lawfully paid.
(fd) To Neither the Knowledge of Stewardship, no additional Taxes will be assessed against Company nor any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities its Subsidiaries has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares stock qualifying for tax-free treatment under Section 355 of the Code that (i) took place during since the two (2) year period ending on the effective date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(pe) None No audit, examination, review or other administrative or court proceedings are pending with or, to the Knowledge of the Stewardship Entities Company, threatened by, any Governmental Authority with respect to Taxes of the Company or any of its Subsidiaries and no written notice thereof has engaged in been received and is outstanding. No currently effective waiver or extension of the statute of limitations for the assessment of any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 Taxes has been granted by the Company or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b))its Subsidiaries.
(qf) None Except as set forth in Section 3.9(f) of the Stewardship Entities has a “permanent establishment” in any country other than Company Disclosure Schedule, neither the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by Company nor any of its Subsidiaries is a party to any contract, agreement, plan or other arrangement that, individually or collectively, would give rise to the Stewardship Entities relating to Taxes is currently in force.
(spayment of any amount which would not be deductible by reason of Section 162(m) Each or Section 280G of the Stewardship Entities reported all transactions that could Code or would give rise to an underpayment of excise Tax (within the meaning of pursuant to Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) 4999 of the Code.
(tg) There is no ContractThe Company has made available, plan or arrangementwill make available by the Closing, including this Agreementto Parent complete and correct copies of (i) all income and franchise Tax Returns of the Company and its Subsidiaries for the taxable years ended June 30, pursuant 2002 and June 30, 2003 and (ii) any examination or audit report or notice of deficiency or proposed adjustment issued within the last three years (or otherwise with respect to which any current audit, examination or former employee other proceeding in progress) relating to income or franchise Taxes of the Company or any of its Subsidiaries.
(h) Neither the Stewardship Entities would be entitled to receive Company nor any payment as of its Subsidiaries has ever been a result “United States real property holding corporation” within the meaning of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) 897 of the Code.
(ui) Except as set forth on Schedule 4.20(u)Neither the Company nor any of its Subsidiaries is a party to or bound by any tax allocation, none tax sharing or other similar agreement. Since June 13, 1996, neither the Company nor any of the Stewardship Entities its Subsidiaries has been a member of any partnership affiliated, consolidated, combined, unitary or joint venture or the holder other similar group for Tax purposes, other than a group of a beneficial interest in any trust for any period for which the statute Company is the ultimate or common parent company. Neither the Company nor any of limitations its Subsidiaries has any liability for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that Person, other than the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the CodeCompany and its Subsidiaries.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each Except for current filings which are the subject of the Stewardship Entities (i) extensions under applicable procedures and which are identified in Schedule 4.21, Seller has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns that Seller was required to be filed or sent by it file prior to any Taxing Authority in respect of any Taxes, each of which was correctly completed the date hereof. All such Tax Returns were correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entityrespects. Except as set forth in Schedule 4.21, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof owed by Seller (whether or not shown on any Tax Return) with respect to Tax Returns the due date of which preceded the date hereof have been paid. Except as set forth in Schedule 4.21, all other Taxes due and payable by Seller with respect to periods ending on or as of the date of the Closing (whether or not a Tax Return is due on such Returns, (iiidate) established have been paid or are accrued on the applicable Financial Statements or will be accrued on the books and records of account Seller as of the Stewardship Entities, in accordance with GAAP Closing and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating made available to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third partyBuyer.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e)SCHEDULE 4.21, there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any each taxable period for Seller ending prior to the date hereof or prior to the date of the Returns Closing, (i) except for taxable periods which are open either such taxable period has been audited by the relevant taxing authority or the time for assessing or collecting Taxes with respect to each such taxable period has closed and each taxable period is not subject to review by an relevant taxing authority; (ii) no deficiency or proposed adjustment which has not been settled or otherwise resolved for any amount of Taxes has been asserted or assessed by any taxing authority against Seller; (iii) Seller has not consented to extend the time in which any Taxes may be assessed or collected by any taxing authority; (iv) Seller has not requested or been granted an extension of the Stewardship Entities. None of time for filing any Tax Return to a date later than the Stewardship Entities Closing; (v) there is no action, suit, taxing authority proceeding, or audit or claim for refund now in progress, pending or threatened against or with respect to Seller regarding Taxes; (vi) Seller has entered into not made an election or filed a closing agreement pursuant to consent under Section 7121 341(f) of the Code (or any similar corresponding provision under of state, local or foreign law); (vii) there are no liens on the assets of Seller relating or attributable to Taxes (other than liens for sales and payroll Taxes not yet due and payable and liens for non-delinquent current real property taxes, special taxes, and assessments paid with real property taxes), and Seller, Partners, and the Shareholders have no knowledge of any reasonable basis for the assertion of any claim relating or attributable to Taxes which, if adversely determined, would result in any such lien (other Law.
than those noted in the preceding parenthetical) on the assets of Seller; (fviii) To the Knowledge to Seller's Knowledge, Seller will not be required (A) as a result of Stewardship, no additional Taxes will be assessed against any a change in method of the Stewardship Entities accounting for any Tax a taxable period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any date of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federalClosing, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies include any adjustment under Section 481 of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
Code (h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions corresponding provision of state, local or foreign Tax Law.
law) in taxable income for any taxable period (kor portion thereof) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any beginning after the date of the Stewardship Entities which would be binding following the Effective Time, and no such agreements Closing or rulings have been applied for by (B) as a result of any Stewardship Entity and are currently pending.
(l) Except "closing agreement," as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions described in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) 7121 of the Code during (or any corresponding provision of state, local or foreign law), to include any item of income or exclude any item of deduction from any taxable period (or portion thereof) beginning after the applicable period specified in Section 897(c)(1)(A)(ii) date of the Code.
Closing; (nix) None of the Stewardship Entities (i) Seller has not been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations as defined in Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) 1504 of the Code) or filed or been included in a distribution of shares qualifying combined, consolidated or unitary income Tax Return; (x) Seller are not a party to or bound by any tax allocation or tax sharing agreement and has no current or potential contractual or other obligation to indemnify any other person with respect to Taxes; (xi) to Seller's Knowledge, no taxing authority will claim or assess any additional Taxes against Seller for tax-free treatment under Section 355 of the Code any period for which Tax Returns have been filed; (xii) no claim has ever been made by a taxing authority in a jurisdiction where Seller does not file Tax Returns that Seller is or may be subject to Taxes assessed by such jurisdiction; (ixiii) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of Seller does not have a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged permanent establishment in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United Statesforeign country, as such term is defined under any applicable Tax in the relevant tax treaty between the United States of America and such other foreign country.
; (rxiv) No power true, correct and complete copies of attorney granted all income and sales Tax Returns filed by any of or with respect to Seller for the Stewardship Entities relating past three years have been furnished or made available to Taxes is currently in force.
Buyer; (sxv) Each of the Stewardship Entities reported Seller has disclosed on each Tax Return filed by Seller all transactions positions taken thereon that could give rise to an underpayment a substantial understatement of Tax (penalty of federal income Taxes within the meaning of Code Section 6662 of the Code6662; and (xvi) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except except as set forth on Schedule 4.20(u)4.21, none of the Stewardship Entities has been a member of any partnership no sales or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable use tax will be payable by Seller as a result of such membership this transaction, and there will be no non-recurring intangible tax, documentary stamp tax, or holding has not expiredother excise tax (or comparable tax imposed by an governmental entity) as a result of this transaction.
(vc) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or Seller and L&R have each been treated as a partnership for federal, state and local tax purposes since its organization, and each will be required a partnership for federal, state and local income tax purposes up to treat and including the Closing Date.
(d) Any reference to the term "Seller" in this Section 4.21 shall refer to Seller and any subsidiary of Seller (whether or not such subsidiary qualifies as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” a "qualified subchapter S subsidiary" within the meaning of Code Section 168(h1361(b)(3)(B)) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Codeand shall include Livermore and Rohnert.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities Except as set forth on Schedule 6.7, (i) has timely filed all Taxes (as hereinafter defined) relating to the Medical Business required to be paid by OANJ or has had timely filed on its behalf (taking into account any extension the Medical Group through the date hereof have been paid and all returns, declarations of time within which to file) each Return estimated Tax, Tax reports, information returns and statements required to be filed by OANJ or sent by it the Medical Group in connection with the Medical Business prior to the date hereof (other than those for which extensions shall have been granted prior to the date hereof) relating to any Taxing Authority in Taxes with respect to any income, properties or operations of any TaxesOANJ or the Medical Group prior to the date hereof (collectively, each "Returns") have been duly filed; (ii) as of which was the time of filing, the Returns correctly completed reflected in all material respects and accurately reflected (and, as to any material Liability for Taxes Returns not filed as of the relevant Stewardship Entitydate hereof, will correctly reflect in all material respects) the facts regarding the income, business, assets, operations, activities and status of the Medical Business and any Affiliate of such entity, covered by such Return, other information required to be shown therein; (ii) timely and properly paid (or had paid on its behalfiii) all Taxes relating to the operations of the Medical Business that have been shown as due and payable for all Tax periods by OANJ or portions thereof whether or not shown on such Returns, (iii) established the Medical Group on the Returns have been timely paid and filed or adequate provisions made to the books of account and records of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and Medical Business; (iv) complied in connection with the Medical Business (x) OANJ has made provision on the Balance Sheet for all material respects Taxes payable by OANJ for any periods that end on or before the Balance Sheet Date for which no Returns have yet been filed and for any periods that begin on or before the Balance Sheet Date and end after the Balance Sheet Date to the extent such Taxes are attributable to the portion of any such period ending on the Balance Sheet Date and (y) provision has been made for all Taxes payable by OANJ or the Medical Group for any periods that end on or before the date hereof for which no Returns have then been filed and for any periods that begin on or before the date hereof and end after such date to the extent such Taxes are attributable to the portion of any such period ending on such date; (v) no tax liens have been filed with all applicable Laws respect to any of the assets of the Medical Business, and there are no pending tax audits of any Returns relating to the withholding of Taxes Medical Business; and (vi) no deficiency or addition to Taxes, interest or penalties applicable to OANJ or the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency Medical Group for any Taxes relating to the operation of the Medical Business has been proposed, asserted or assessed against in writing (or any member of any affiliated or combined group of which the Medical Group or any previous operator of the Medical Business was a member for which the Medical Group could be liable).
(b) The Medical Group is not a foreign person within the meaning of ss.1.1445-2(b) of the Regulations under Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code").
(c) The Medical Group has provided the Management Company with true and complete copies of all Federal and state Returns of the Medical Group for the calendar years ending December 31, 1996 and 1995.
(d) For purposes of this Agreement, "Tax" means any of the Stewardship Entities that has not been resolved Taxes and paid in full. No waiver"Taxes" means, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes person or any Return is outstandingentity, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fi) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federalFederal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended taxes (including any tax on or after December 31based upon net income, 2015or gross income, indicates those Returns that have been audited and indicates those Returns that currently are the subject or income as specially defined, or earnings, or profits, or selected items of audit. True and complete copies of the Returns of each of the Stewardship Entitiesincome, as filed with the Internal Revenue Service earnings or profits) and all state Federal, state, local and foreign gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties or other Federal, state, local Tax jurisdictions and foreign taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority (domestic or foreign) on such person or entity and (ii) any liability for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G amount of the Code, and type described in the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible immediately preceding clause (in whole or in parti) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in being a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” 'transferee' (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) 6901 of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5any other applicable law) of the Codeanother person or entity or a member of an affiliated or combined group.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Management Services Agreement (BMJ Medical Management Inc)
Tax Matters. (a) Each Except as set forth on Schedule 4.9(a), the Company, each of its Subsidiaries, and each other Person included in any consolidated or combined Tax Return and part of an affiliated group, within the meaning of Section 1504 of the Stewardship Entities Internal Revenue Code of 1986, as amended (the "Code"), of which the Company or any of its Subsidiaries is or has been a member:
(i) has timely paid or caused to be paid all Taxes required to be paid by it through the date hereof and as of the First Closing Date (including any Taxes shown due on any Tax Return);
(ii) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed with the appropriate Governmental Entities in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of jurisdictions in which such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, Returns are required to be filed; and
(iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes has not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eb) No deficiency for any Taxes The Company has been proposedpreviously delivered to the Purchaser true, asserted correct and complete copies of all Tax Returns filed by or assessed against any on behalf of the Stewardship Entities that has not been resolved Company and paid in full. No waiver, extension or comparable consent given by any each of its Subsidiaries for all completed Tax years of the Stewardship Entities regarding Company or such Subsidiary that remain open for audit or review by the application of the statute of limitations with respect to any Taxes or any Return is outstandingrelevant Taxing authority. All such Tax Returns were true, nor is any request for any such waiver or consent pending. correct and complete.
(c) Except as set forth on in Schedule 4.20(e)4.9(c):
(i) neither the Company nor any of its Subsidiaries has been notified by the Internal Revenue Service or any other Taxing authority that any issues have been raised (and no such issues are currently pending) by the Internal Revenue Service or any other Taxing authority in connection with any Tax Return of the Company or any of its Subsidiaries, there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information pending Tax audits with respect to the Company or any of its Subsidiaries, and no waivers of statutes of limitations related to Taxes have been given or requested with respect to the Returns of Company or any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.its Subsidiaries;
(fii) To full and adequate provision has been made (A) on the Knowledge Latest Balance Sheet for all Taxes payable by the Company and each of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities its Subsidiaries for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Latest Balance Sheet Date, and (B) on the estimated reserves books and records of the Company and each of its Subsidiaries for such all Taxes established payable by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability Company and such Subsidiaries for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended beginning on or after December 31the Latest Balance Sheet Date;
(iii) neither the Company nor any of its Subsidiaries has incurred any Tax Liability from and after the Latest Balance Sheet Date other than Taxes incurred in the ordinary course of business, 2015consistent with past practice;
(iv) neither the Company nor any of its Subsidiaries (A) is, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies or has made an election to be treated as, a "consenting corporation" under Section 341(f) of the Returns Code, or (B) is, or has been, a "personal holding company" within the meaning of Section 542 of the Code;
(v) the Company and each of its Subsidiaries have complied in all respects with all applicable Laws relating to the Stewardship Entities, as filed with collection or withholding of Taxes (including sales Taxes and the Internal Revenue Service and all state or local Tax jurisdictions for withholding of Taxes from the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.wages of employees);
(hvi) To neither the Knowledge Company nor any of Stewardshipits Subsidiaries is, none or has ever been, a party to any Tax sharing, indemnity of similar agreement with any Person;
(vii) neither the Company nor any of its Subsidiaries has incurred any Liability to make or possibly make any payments, either alone or in conjunction with any other payments, that:
(A) are not deductible under, or would otherwise constitute a "parachute payment" within the meaning of, Section 280G of the Stewardship Entities has Code (or any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any corresponding provision of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is domestic or foreign income Tax Law); or
(B) are or may be subject to taxation by that jurisdiction.the imposition of an excise Tax under Section 4999 of the Code;
(iviii) Except as set forth on Schedule 4.20(i)neither the Company nor any of its Subsidiaries has agreed to, none of or is required to, make any adjustments or changes either on, before or after the Stewardship Entities is a party First Closing Date, to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of its accounting methods pursuant to Section 280G 481 of the Code, and the consummation Internal Revenue Service has not proposed any such adjustments or changes in the accounting methods of the transactions contemplated by this Agreement will not be a factor causing payments Company or any such Subsidiary;
(ix) to be the knowledge of the Seller Group, no claim has ever been made by any of Taxing authority in a jurisdiction in which the Stewardship Entities Company or any other Person of it Subsidiaries does not file Tax Returns that are not deductible (in whole the Company or in part) as a result of the application of Section 280G of the Code.any such Subsidiary is, or may be subject to, taxation by that jurisdiction; and
(jx) None of neither the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accountingCompany, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by its Subsidiaries nor any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities Stockholder is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation foreign Person within the meaning of Section 897(c)(21.1445-2(b) of the Code during the applicable period specified in rules and regulations promulgated under Section 897(c)(1)(A)(ii) 1445 of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has Purchaser, each of its subsidiaries and to the knowledge of Purchaser each of the Material Purchaser Entities which are not subsidiaries have timely filed filed, or has had timely filed on its behalf (taking into account any extension of time within which caused to file) each Return be filed, all Tax Returns required to be filed by them (all of which returns were correct and complete in all material respects). Purchaser, each of its subsidiaries and to the knowledge of Purchaser each of the Material Purchaser Entities which are not subsidiaries have timely paid, collected, withheld or sent remitted, or caused to be paid, withheld or remitted, all material Taxes that are due and payable (including all instalments on account of Taxes for the current year that are due and payable by Purchaser, any of its subsidiaries and to the knowledge of Purchaser the Material Purchaser Entities which are not subsidiaries whether or not assessed (or reassessed) by the appropriate Governmental Entity). There are no encumbrances for Taxes (other than Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of Purchaser in accordance with Canadian GAAP) upon any of the assets or properties of Purchaser, any of its subsidiaries and the Material Purchaser Entities which are not subsidiaries;
(ii) Purchaser has provided adequate accruals in accordance with Canadian GAAP in its consolidated financial statements for the period from inception to December 31, 2007 for any Taxes for the period covered by such financial statements that have not been paid, whether or not shown as being due on any Tax Returns;
(iii) since the publication date of Purchaser’s consolidated financial statements for the period ending December 31, 2007, no material Tax liability not reflected in such statements or otherwise provided for has been assessed, incurred, proposed to be assessed or accrued or raised for review or placed under appeal;
(iv) Purchaser, each of its subsidiaries and to the knowledge of Purchaser each of the Material Purchaser Entities which are not subsidiaries has duly and timely withheld from any amount paid or credited by it to or for the account or benefit of any Taxing Authority person the amount of all Taxes and other deductions required by all applicable Law to be withheld from any such amount and has duly and timely remitted the same to the appropriate Governmental Entity; and
(v) there are no material proceedings, investigations, audits or claims now pending or, to the knowledge of Purchaser, threatened against Purchaser, any of its subsidiaries and, to the knowledge of Purchaser, the Material Purchaser Entities which are not subsidiaries in respect of any TaxesTaxes and there are no material matters under discussion, each audit or appeal with any Governmental Entity relating to Taxes and no material waivers of which was correctly completed in all material respects and accurately reflected statutes of limitations, statutory limitation periods, agreements or other arrangements providing for an extension of time with respect to the filing of any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (Tax Return or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has given or requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstandingPurchaser, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, norits subsidiaries and, to the Knowledge knowledge of StewardshipPurchaser, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Material Purchaser Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that which are not deductible (in whole or in part) as a result of the application of Section 280G of the Codesubsidiaries.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) Each The Company and each of the Stewardship Entities its Subsidiaries has prepared (ior caused to be prepared) has and timely filed or has had timely filed on its behalf (taking into account any extension valid extensions of time within which to file) each Return all income Tax Returns and all other material Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesthem, each of which was correctly completed and all such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate in all material respects respects.
(b) The Company and accurately reflected any material Liability for Taxes each of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) its Subsidiaries has timely and properly paid (or had paid on its behalf) all Taxes owed by it that are due and payable for all Tax periods or portions thereof (whether or not shown on such any Tax Returns, ). The unpaid Taxes of the Company and its Subsidiaries as of the Balance Sheet Date did not exceed the accruals and reserves for Taxes (iiiexcluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax income) established set forth on the books of account of Company Balance Sheet (other than in the Stewardship Entitiesnotes thereto), in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof Company has not since the Balance Sheet Date incurred any liability for Taxes other than in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each the ordinary course of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesbusiness.
(c) There As of the date of this Agreement, there are no Encumbrances for Taxes upon any assets pending or, to the Knowledge of the Company, threatened, audits, examinations, investigations, claims or other proceedings in respect of any Taxes of the Stewardship Entities, except Permitted EncumbrancesCompany or any of its Subsidiaries.
(d) None There are no Liens for Taxes on any of the Stewardship Entities has requested assets of the Company or any extension of time within which to file any Return, which Return has not since been filed.its Subsidiaries other than Permitted Liens
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities Company or any of its Subsidiaries has entered into been a closing agreement pursuant “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date of this Agreement that was purported or intended to be governed by Section 7121 355 of the Code (or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law).
(kf) All amounts of Tax required to be withheld by the Company and each of its Subsidiaries have been timely withheld, and to the extent required by applicable Law, all such withheld amounts have been timely paid over to the appropriate Governmental Authority.
(g) Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to an assessment or deficiency for Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course).
(h) No Tax rulings, requests for rulings, closing agreements, private letter rulings rulings, technical advance memoranda or other similar agreements or rulings (including any application for a change in accounting method under Section 481 of the Code) have been entered into with, issued by, or issued by filed with any Taxing Governmental Authority with respect to or relating to the Company or any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pendingits Subsidiaries.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(mi) Neither Stewardship the Company nor Stewardship Bank has been a United States real property holding corporation within the meaning any of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
its Subsidiaries (n) None of the Stewardship Entities (iA) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Stewardshipthe Company) or (iiB) has any Liability liability for the Taxes of any Person person (other than Stewardship the Company or Stewardship Bankany of its Subsidiaries) under Treasury Regulations Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, pursuant to any contractual obligation (excluding customary Tax indemnification obligations in commercial contracts not primarily relating to Taxes) or otherwise.
(oj) None Neither the Company nor any of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or its Subsidiaries has participated in any “confidential corporate tax shelterlisted transaction” (within the meaning of Treasury Regulation Section 301.61111.6011-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)4(b)(2).
(qk) None For purposes of the Stewardship Entities has a this Agreement: (x) “permanent establishmentTax” in shall mean any country and all federal, state, local or foreign taxes, fees, levies, duties, tariffs, imposts, and other than the United Statessimilar charges (together with any and all interest, as such term is defined under any applicable Tax treaty between the United States penalties and such other country.
(radditions to tax) No power of attorney granted imposed by any Governmental Authority responsible for the collection or enforcement of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangementtaxes, including this Agreement, pursuant to which any current taxes or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 other charges on or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs’ duties, tariffs, and similar charges, together with any interest deductions may or penalty, addition to tax or additional amount imposed by any Governmental Authority; and (y) “Tax Returns” shall mean returns, reports, claims for refund, declarations of estimated Taxes and information statements, including any schedule or attachment thereto or any amendment thereof, with respect to Taxes filed or required to be disallowed under Section 279 of filed with the Code IRS or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the CodeGovernmental Authority, domestic or foreign, including consolidated, combined and unitary tax returns.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return All Tax Returns that are required to be filed on or sent before the Closing Date by it to or on behalf of Phoenix or any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of its Subsidiaries have been or will be timely filed on or before the relevant Stewardship EntityClosing Date, and any Affiliate of all such entityTax Returns are or will be true, covered by such Return, complete and correct as the case may be; (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods owed by Phoenix or portions thereof whether any of its Subsidiaries or not shown on such Returnsotherwise with respect to the Business, have been or will be timely paid in full; (iii) established on Phoenix and its Subsidiaries have adequately reserved for all material Taxes accrued through the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes date hereof but not then due and payable yet payable; and (iv) complied in as of the Closing Date Phoenix and its Subsidiaries will have adequately reserved for all material respects with Taxes accrued through the Closing Date but not yet payable.
(b) (i) The Tax Returns referred to in Section 4.20(a) have been examined by the IRS or the appropriate state, local or foreign taxing authority or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired for all applicable Laws relating taxable periods through and including December 31, 2003; (ii) all deficiencies asserted or assessments made as a result of any such examinations have been paid in full or, to the withholding extent set forth in Section 4.20(b) of the Disclosure Schedule, are being contested in good faith by appropriate proceedings; (iii) no waivers of statutes of limitation have been given by or requested with respect to any material Taxes of Phoenix or any of its Subsidiaries with respect to any tax period ending after December 31, 2003; (iv) Phoenix has provided Parent correct and complete copies of examination reports and statements of deficiencies assessed against or agreed to by Phoenix or any of its Subsidiaries for any tax period ending after December 31, 2003; and (v) except as set forth in Section 4.20(b) of the payment thereof Disclosure Schedule, no written claim has been received by Phoenix or its Subsidiaries from an authority in a jurisdiction where Phoenix or any of its Subsidiaries do not file Tax Returns that Phoenix or any of its Subsidiaries are subject to taxation by that jurisdiction with respect to the Business or should have been included in a consolidated return.
(c) Neither Parent nor any of its Subsidiaries (including the Surviving Corporation) will be required, as a result of (i) a change in accounting method by Phoenix for a Tax period beginning on or before the Closing, to include any adjustment under Section 481(c) of the Code (or any similar provision of state, local or foreign law) in taxable income for any Tax period beginning on or after the Closing Date, or (ii) any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Tax law), to include any item of income in or exclude any item of deduction from any Tax period beginning on or after the Closing.
(d) Neither Phoenix nor any of its Subsidiaries has ever been a member of an affiliated, combined, consolidated or unitary Tax group for purposes of filing any Tax Return, other than a group the common parent of which is Phoenix or has any liability for taxes of any person (other than Phoenix or any of its Subsidiaries) under regulation section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor, by contract or otherwise.
(e) No closing agreements, private letter rulings, technical advance memoranda or similar agreement or rulings have been entered into or issued by any taxing authority with respect to Phoenix or its Subsidiaries.
(f) Phoenix and its Subsidiaries have withheld or collected and paid or deposited in accordance with Law all Taxes required to have been withheld or collected and paid or deposited in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder stockholder or other third party.
(bg) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of Neither Phoenix nor any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities its Subsidiaries is bound by or has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for obligation under any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit allocation or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbiasharing agreement.
(h) To the Knowledge of Stewardship, none Phoenix has made available to Parent true and correct copies of the Stewardship Entities has any Liability Tax Returns filed by Phoenix or its Subsidiaries for Taxes in a jurisdiction where it does not file a Returnall periods since December 31, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction2003.
(i) Except as set forth on Schedule 4.20(iNeither Phoenix nor or any of its Subsidiaries (i) has engaged in any transaction that is the same as, or substantially similar to, a transaction which is a “reportable transaction” for purposes of Treasury Regulations Section 1.6011-4(b) (including any transaction which the IRS has determined to be a “listed transaction” for purposes of Treasury Regulations Section 1.6011-4(b)(2), none of the Stewardship Entities is or would be reportable to a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or similar extent under any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions provision of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(llaw), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or ; (ii) has engaged in a transaction of which it made disclosure to any Liability for taxing authority to avoid penalties; or (iii) has participated in any “tax amnesty” or similar program offered by any taxing authority to avoid the Taxes assessment of any Person (penalties or other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwiseadditions to Tax.
(oj) None Neither Phoenix nor any of the Stewardship Entities constitutes either its current or former Subsidiaries has been a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying stock intended to qualify for taxTax-free treatment under Section 355 355(a) of the Code that Code: (i) took place at any time during the two (2) two-year period prior to the date hereof, (ii) at any time during the period commencing on the date hereof and ending on the date of this Agreement Closing Date or (iiiii) which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with and including the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Samples: Merger Agreement (Visant Corp)
Tax Matters. (a) Each of the Stewardship Entities (i) has Jefferson and its Subsidiaries have duly and timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it with respect to any Taxing Authority in respect of any all applicable Taxes, each of which was correctly completed and all such Tax Returns are true, correct and complete in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, respects.
(ii) (A) Jefferson and its Subsidiaries have timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof payable, whether or not shown on such Returnsany Tax Return and whether or not a Tax Return was required to be filed, (iiiB) Jefferson and its Subsidiaries have established on reserves in the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves Jefferson Financial Statements for Taxes which are sufficient for the payment of any all unpaid Taxes as of the dates thereof, whether or not then such Taxes are disputed or are yet due and payable and (iv) complied in all material respects payable, for or with all applicable Laws relating respect to the withholding of period, (C) Jefferson and its Subsidiaries have withheld and paid to the proper taxing authority all Taxes required to have been withheld and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractorconsultant, creditor, shareholder member or other third party.
, (bD) Each of the Stewardship Entities has made (or caused to be made on Jefferson and its behalf) all estimated Tax payments required to Subsidiaries have been made to avoid any underpayment penalties.
(c) There are no Encumbrances liability for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency payable for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard periods prior to any Taxes or any Return of any and including the Effective Time in excess of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or amounts actually paid prior to the Effective Time that will exceed the estimated reserves or reserved for such Taxes established in Jefferson Financial Statements, and (E) no claim has ever been made by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has taxing authority in any Liability for Taxes jurisdiction in a jurisdiction where it which Jefferson and/or its Subsidiaries does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Jefferson and/or its Subsidiaries is or may be subject to taxation by that jurisdiction.
(iiii) Except as set forth on Schedule 4.20(i)Jefferson and its Subsidiaries have furnished or otherwise made available to Jefferson true and correct copies of all Tax Returns and all written communications relating to any such Tax Returns or to any deficiency or claim proposed and/or asserted, none irrespective of the Stewardship Entities outcome of such matter, but only to the extent such Tax Returns or items relate to tax years which are currently subject to an audit, investigation, examination or other proceeding, or with respect to which the statute of limitations has not expired.
(A) All deficiencies asserted or assessments made as a result of any Tax audit, investigation, examination or other proceeding have been paid in full, (B) except as Previously Disclosed, there are no current audits, investigations or examinations with respect to any Tax Returns of Jefferson and its Subsidiaries, and Jefferson has not received any notice that any such audit, investigation or examination is threatened or pending, and (C) no waivers of or extensions of the statutes of limitation (with respect to collection or assessment of Taxes) have been given by or requested with respect to any Taxes of Jefferson or its Subsidiaries.
(v) (A) Neither Jefferson nor any of its Subsidiaries is a party to any Contract that would resultagreement relating to the sharing, separately allocation or in the aggregatepayment of, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Codeor indemnity for, Taxes, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by (B) neither Jefferson nor any of the Stewardship Entities its Subsidiaries is or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return or combined Tax Returns (other than a group of which Jefferson is or was the common parent of which was Stewardshipparent) or (ii) otherwise has any Liability liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(qvi) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable (A) Jefferson and its Subsidiaries have disclosed on their Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported Returns all transactions positions taken therein that could reasonably be expected to give rise to an underpayment a substantial understatement of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authorityCode (or any similar provision under any state, local, or adequately disclosed foreign tax Law), (B) neither Jefferson nor any of its Subsidiaries have engaged in any “reportable transactions” as defined in Section 6707A of the Code, and (C) To the knowledge of Jxxxxxxxx, Xxxxxxxxx and its Subsidiaries are in compliance with, and their records contain all information and documents (including properly completed IRS Forms W-9) necessary to comply with, all applicable information reporting and tax withholding requirements under federal, state, and local tax Laws, and such transactions on the Returns as required in accordance records identify with specificity all accounts subject to backup withholding under Section 6662(d)(2)(B) 3406 of the Code.
(tvii) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of (A) Neither Jefferson nor any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities its Subsidiaries has been a member of party to any partnership or joint venture or distribution occurring during the holder of a beneficial interest last three years in any trust for any period for which the statute parties to such distribution treated the distribution as one to which Section 355 of limitations for the Code applied, (B) neither Jefferson nor any Taxes potentially applicable as of its Subsidiaries has entered into a result of such membership written agreement with any taxing authority or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required subject to treat as being owned by another Person an adjustment under the provisions of Section 168(f)(8481(a) of the Code that would have a material impact on the calculation of Taxes after the Effective Time, and (as in effect prior to amendment by the Tax Reform Act of 1986)C) Jefferson is not, (ii) “tax-exempt use property” has not been within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined applicable period set forth in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i897(c)(1)(A)(ii) of the Code, and none shall not be as of the interest on Closing Date, a “United States real property holding corporation” (as that term is defined under Section 897 of the Code).
(viii) As of the date hereof, neither Jefferson nor any such indebtedness will be disallowed of its Subsidiaries has any reason to believe that any conditions exist that might prevent or impede the Parent Merger from qualifying as a deduction under any other provision reorganization within the meaning of Section 368(a) of the Code.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) Purchaser:
(A) has timely paid or caused to be paid all Taxes required to be paid by it though the date hereof and as of the Closing Date (including any Taxes shown due on any Tax Return);
(B) has filed or has had caused to be filed in a timely filed on its behalf and proper manner (taking into account within any applicable extension of time within which to fileperiods) each Return all Tax Returns required to be filed or sent by it with the appropriate Governmental Body in all jurisdictions in which such Tax Returns are required to any Taxing Authority in respect be filed; and all tax returns filed on behalf of any Taxes, Purchaser and each of which was correctly Purchaser Tax Affiliate were completed and correct in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.respects; and
(bC) Each of the Stewardship Entities has made (not requested or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Tax Return, which Tax Return has not since been filed.
(eii) No deficiency Purchaser has previously delivered true, correct and complete copies of all Federal Tax Returns filed by or on behalf of Purchaser through the date hereof for the periods ending after December 31, 2009.
(A) Purchaser has not been notified by the IRS or any other Governmental Body that any issues have been raised (and no such issues are currently pending) by the IRS or any other Governmental Body in connection with any Tax Return filed by or on behalf of Purchaser or any Purchaser Tax Affiliate; there are no pending Tax audits and no waivers of statutes of limitations have been given or requested with respect to Purchaser or any Purchaser Tax Affiliate (for years that it was a Purchaser Tax Affiliate); no Tax liens have been filed against Purchaser or unresolved deficiencies or additions to Taxes has have been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes Purchaser or any Return is outstanding, nor is any request Purchaser Tax Affiliate (for any such waiver or consent pending. Except as set forth on Schedule 4.20(ethe years that it was a Purchaser Tax Affiliate), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(fB) To Full and adequate accrual has been made (i) on the Knowledge Purchaser Balance Sheet, and the books and records of Stewardship, no additional Purchaser for all income Taxes will be assessed against any of the Stewardship Entities currently due and all accrued Taxes not yet due and payable by Purchaser for any Tax period or portion thereof all periods ending on or prior to the Effective Time that will exceed Purchaser Balance Sheet Date, and (ii) on the estimated reserves books and records of Purchaser and for such all Taxes established payable by Purchaser for all periods beginning after the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship EntitiesPurchaser Balance Sheet Date.
(gC) Schedule 4.20(gPurchaser has not incurred any liability for Taxes from and after the Purchaser Balance Sheet Date other than Taxes incurred in the Ordinary Course of Business and consistent with past practices.
(D) lists Purchaser has not (i) made an election (or had an election made on its behalf by another person) to be treated as a “consenting corporation” under Section 341(f) of the Code or (ii) a “personal holding company” within the meaning of Section 542 of the Code.
(E) Purchaser has complied in all federalmaterial respects with all Applicable Laws relating to the collection or withholding of Taxes (such as Taxes or withholding of Taxes from the wages of employees).
(F) Purchaser has no liability in respect of any Tax sharing agreement with any Person and all Tax sharing agreements to which Purchaser has been bound have been terminated.
(G) Purchaser has not incurred any Liability to make any payments either alone or in conjunction with any other payments that:
(1) shall be non-deductible under, state, or would otherwise constitute a “parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state local and or foreign income Returns filed with respect Tax Law); or
(2) are or may be subject to the Stewardship Entities for taxable periods ended imposition of an excise Tax under Section 4999 of the Code.
(H) Purchaser has not agreed to (nor has any other Person agreed to on its behalf) and is not required to make any adjustments or changes on, before or after December 31the Closing Date, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies to its accounting methods pursuant to Section 481 of the Returns of each of the Stewardship EntitiesCode, as filed with and the Internal Revenue Service and all state has not proposed any such adjustments or local Tax jurisdictions for changes in the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbiaaccounting methods of Purchaser.
(hI) To No claim has been made within the Knowledge of Stewardship, none of the Stewardship Entities has last three years by any Liability for Taxes taxing authority in a jurisdiction where it in which Purchaser does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction Tax Returns that it Purchaser is or may be subject to taxation by that jurisdiction.
(iJ) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the The consummation of the transactions contemplated by this Agreement Share Exchange will not be trigger the realization or recognition of intercompany gain or income to Purchaser under the Federal consolidated return regulations with respect to Federal, state or local Taxes.
(K) Purchaser is not currently, nor has it been at any time during the previous five years, a factor causing payments to be made by any of “U.S. real property holding corporation” and, therefore, the Stewardship Entities or any other Person that Purchaser Common Stock is not “U.S. real property interests,” as such terms are not deductible (defined in whole or in part) as a result of the application of Section 280G 897 of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
Tax Matters. (ai) Each of ENI US, ENI Taiwan and, as of the Stewardship Entities (i) Closing Date, ENI Hong Kong and ENI China has timely filed or has had timely filed on its behalf a timely basis all material Tax Returns that each is required to file, and all such Tax Returns were complete and accurate in all material respects; (taking into account any extension ii) ENI US is not and has never been a member of time within a group of corporations with which it has filed (or been required to file) each Return consolidated, combined or unitary Tax Returns, other than a group of which Emerson or a Subsidiary of Emerson was the common parent and all materiax Xxx Xeturns of any such Axxxxxxxed Group which were required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed have been filed and all such Tax Returns were complete and accurate in all material respects respects; (iii) each of ENI US, each member of an Affiliated Group, ENI Taiwan and, as of the Closing Date, ENI Hong Kong and accurately reflected ENI China has paid on a timely basis all material Taxes that were due and payable prior to the Closing Date other than Taxes being contested in good faith; (iv) the unpaid Taxes of ENI US and ENI Taiwan for Tax periods through the Most Recent Balance Sheet Date do not exceed the accruals and reserves for Taxes (excluding accruals and reserves for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Most Recent Balance Sheet to any material Liability for extent; and (v) all material Taxes that ENI US, ENI Taiwan and, as of the relevant Stewardship Closing Date, ENI Hong Kong and ENI China is or was required by law to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper Governmental Entity, .
(i) All copies of any pro forma federal income Tax Returns for ENI US provided or made available to Buyer and any Affiliate of such entity, covered by such Return, its representatives are accurate in all material respects; (ii) timely and properly paid (the federal income Tax Returns of or had paid on its behalf) all Taxes due and payable relating to ENI US for all Tax periods taxable years through the taxable year specified in Section 2.10(b) of the Disclosure Schedule have been audited by the Internal Revenue Service or portions thereof whether or not shown on such Returns, are closed by the applicable statute of limitations; (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment no examination or audit of any Taxes not then due and payable and Tax Return of or relating to ENI US or ENI Taiwan by any Governmental Entity is currently in progress or, to the knowledge of Emerson, threatened or contemplated; (iv) complied in all material respects with all applicable Laws relating to the withholding knowledge of Taxes and the payment thereof in connection with any amounts paid or owing to any employeeEmerson, independent contractornxxx xx ENI US, creditorENI Taiwan and, shareholder or other third party.
(b) Each as of the Stewardship Entities Closing Date, ENI Honx Xxxx and ENI China has made (or caused to be made on its behalf) all estimated Tax payments been informed by any jurisdiction that the jurisdiction believes that such entity was required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any ReturnTax Return that was not filed; and (v) none of ENI US, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposedENI Taiwan and, asserted or assessed against any as of the Stewardship Entities that Closing Date, ENI Hong Kong and ENI China has not been resolved and paid in full. No waiver, extension or comparable consent given by waived any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard agreed to any Taxes or any Return an extension of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information time with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code Tax assessment or any similar provision under any other Lawdeficiency.
(fc) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in ENI US is not a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” "consenting corporation" within the meaning of Section 280G 341(f) of the Code, and the consummation none of the transactions contemplated by this Agreement will not be a factor causing payments assets of ENI US is subject to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in partan election under Section 341(f) as a result of the application of Section 280G of the Code.
; (jii) None of the Stewardship Entities will be required ENI US has not made any payments, is not obligated to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time make any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Timepayments, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is not a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than that could obligate it to make any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements payments that are not primarily related may be subject to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning deduction limitations of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii162(m) of the Code.
; and (niii) None none of ENI US, ENI Taiwan and, as of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) Closing Date, ENI Hong Kong and ENI China has any Liability actual or, to the knowledge of Emerson, potential liability for the any material Taxes of any Person person under Xxxxxxxy Regulations Section 1.1502-6 (or any similar provision of federal, state, local, or foreign law), or as a transferee or successor, by contract, or otherwise, except actual or potential liabilities of ENI US for any material Taxes of other than Stewardship or Stewardship Bank) Subsidiaries of Emerson under Treasury Regulations Section 1.1502-6 (or any similar provision of Lawprovxxxxx xf federal, state, local or foreign law), as a transferee or successor, by Contract, or otherwise.
(od) None of the Stewardship Entities constitutes either assets of ENI US: (i) is property that is subject to a “distributing corporation” or a “controlled corporation” tax benefit transfer lease executed in accordance with former Section 168(f)(8) of the Internal Revenue Code of 1954 as amended; (ii) is "tax-exempt use property" within the meaning of Section 355(a)(1)(A168(h) of the Code; or (iii) directly or indirectly secures any debt the interest on which is Tax exempt under Section 103(a) of the Code;
(e) There are no adjustments under Section 481 of the Code (or any similar adjustments under any provision of the Code or the corresponding foreign, state or local Tax laws) that will be required to be taken into account by any of ENI US, ENI Taiwan and, as of the Closing Date, ENI Hong Kong and ENI China in any period ending after the Closing Date by reason of a change in method of accounting in any taxable period ending on or before the Closing Date.
(f) There is no limitation on the utilization by ENI US of any net operating losses, built-in losses, Tax credits, or similar items under Sections 382, 383, or 384 of the Code or comparable provisions of state law (other than any such limitations arising as a result of the consummation of the transactions contemplated by this Agreement).
(g) ENI US has never participated in an international boycott as defined in Section 999 of the Code.
(h) ENI US has not distributed to its stockholders or security holders stock or securities of a controlled corporation, and no stock or securities of any Subsidiary of ENI US has been distributed in a distribution of shares qualifying for tax-free treatment under transaction to which Section 355 of the Code that applies (i) took place during in the two (2) year period ending on years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code) in conjunction with that includes the transactions contemplated by this Agreement.
(pi) None Section 2.10(i) of the Stewardship Entities has engaged Disclosure Schedule, which shall be provided to Buyer on or prior to the Closing Date, sets forth with respect to the ENI Business each jurisdiction in which any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4Tof ENI US, ENI Taiwan and the Asset Sellers regularly files material Tax Returns or has participated in any “confidential corporate tax shelter” filed a material Tax Return within three (within 3) years preceding the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b))Closing Date.
(qj) None ENI US has not incurred (or been allocated) an "overall foreign loss" as defined in Section 904(f)(2) of the Stewardship Entities Code which has a “permanent establishment” not been previously recaptured in any country other than the United States, full as such term is defined under any applicable Tax treaty between the United States and such other country.
(rprovided in Sections 904(f)(1) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(Band/or 904(f)(3) of the Code.
(tk) There ENI US is no Contract, plan or arrangement, including this Agreement, pursuant not party to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible gain recognition agreement under Section 404 or 162(m) 367 of the Code.
(ul) Except None of ENI US, ENI Taiwan or, as set forth on Schedule 4.20(u), none of the Stewardship Entities has been Closing Date, ENI Hong Kong or ENI China owns any direct interest in an entity that is characterized as a member of any partnership or joint venture or the holder of (other than ENI China if an election to that effect is made by ENI China) a beneficial interest in any trust disregarded entity for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expiredU.S. federal income Tax purposes.
(vm) No property Each of any Stewardship Entity is ENI Japan, Astec Germany, Astec International Limited, Astec Custom Power (Hong Kong) Limited, Astec Electronics Company Ltd., and Astec Power Supply (Shenzhen) Company Ltd.: (i) property that the relevant Stewardship Entity is has or will be have, as of the Closing Date, timely paid all Taxes which will have been required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect be paid on or prior to amendment by the Tax Reform Act Closing Date, the non-payment of 1986)which would result in a lien (other than a lien in respect of Taxes not yet due and payable) on any Acquired Asset or asset transferred to ENI Hong Kong or ENI China, would otherwise materially adversely affect the ENI Business or would result in Buyer, ENI Hong Kong, ENI China or any Affiliate of Buyer becoming liable or responsible therefor and (ii) “taxwill timely pay all Taxes which arise from or with respect to the Acquired Assets or the ENI Business that are incurred or attributable to a taxable period (or portion thereof) that ends on or before the Closing Date, the non-exempt use property” within payment of which would result in a lien (other than a lien in respect of Taxes not yet due and payable) on any Acquired Asset or asset transferred to ENI Hong Kong or ENI China, would otherwise materially adversely affect the meaning ENI Business or would result in Buyer, ENI Hong Kong, ENI China or any Affiliate of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the CodeBuyer becoming liable therefor.
(wn) None Emerson shall provide Buyer with a representation letter substantially ix xxx xorm of Exhibit G dated as of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (Closing Date. The representations and warranties contained in such representation letter shall be incorporated into this Agreement as defined if such representations and warranties were made by Emerson in this Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code2.10.
Appears in 1 contract
Tax Matters. (a) Each of the Stewardship Entities (i) has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return All income Tax Returns and all other material Tax Returns required to be filed by or sent with respect to ARG or any of its Subsidiaries (other than Sybra and its Subsidiaries) or by it or with respect to any Taxing Authority in Sybra and its Subsidiaries for Tax Periods ending after December 27, 2002), have been properly prepared and timely filed (including all applicable extensions), and all such Tax Returns (including information provided therewith or with respect of any Taxesthereto) are true, each of which was correctly completed complete and correct in all material respects respects.
(b) ARG and accurately reflected any its Subsidiaries (other than Sybra and its subsidiaries), or by or with respect to Sybra and its Subsidiaries for Tax periods ending after December 27, 2002) have fully and timely paid all income Taxes and all other material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered owed by such Return, companies (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on any Tax Return), and have made adequate provision for any such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes that are not then yet due and payable and (iv) complied in payable, for all material respects with all applicable Laws relating to taxable periods, or portions thereof, ending on or before the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penaltiesdate hereof.
(c) There are no Encumbrances outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, Taxes upon any assets of due from ARG or any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency its Subsidiaries for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved taxable period and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any no written request for any such waiver or consent extension is currently pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax .
(d) No audit or other proceeding by any Governmental Entity is pending, nor no Governmental Entity has there been given written notice of any notice intention to any of the Stewardship Entities by any Taxing Authority regarding any such Tax commence an audit or other proceeding, nor, to the Knowledge of Stewardship, is or assert any such Tax audit deficiency or other proceeding threatened with regard to any claim for additional Taxes against ARG or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of its Subsidiaries, and no claim in writing has been made by any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes Governmental Entity in a jurisdiction where it does ARG and its Subsidiaries do not file Tax Returns with respect to a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction particular Tax that it is or may be subject to taxation by that jurisdictionjurisdiction with respect to such Tax, and all deficiencies for Taxes asserted or assessed in writing against ARG or any of its Subsidiaries have been fully and timely paid, settled or properly reflected in the ARG Financial Statements.
(ie) Except as set forth on Schedule 4.20(i), none There are no Liens for Taxes upon the assets or properties of the Stewardship Entities is a party to any Contract that would result, separately ARG or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are its Subsidiaries, except for statutory Liens for current Taxes not deductible (in whole or in part) as a result of the application of Section 280G of the Codeyet due.
(jf) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to Neither ARG nor any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities its Subsidiaries is a party to any Tax allocation, sharing, indemnity, Sharing Agreement or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship members of the affiliated group, within the meaning of Section 1504(a) of the Code, filing consolidated federal income tax returns of which Triarc is the common parent (or Stewardship Bankmembers of any affiliated group filing combined or consolidated Tax returns for state, local or foreign Law purposes or which any of Triarc or its Subsidiaries is the common parent) under Treasury Regulations Section Regulation ss. 1.1502-6 (6, Treasury Regulation ss. 1.1502-78 or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract, or otherwise.
(og) None ARG and its Subsidiaries have each withheld (or will withhold) from their respective employees, independent contractors, creditors, stockholders and third parties and timely paid to the appropriate Governmental Entity proper and accurate amounts in all material respects for all periods ending on or before the Closing Date in compliance with all Tax withholding and remitting provisions of the Stewardship Entities constitutes either applicable Laws and have each complied in all material respects with all Tax information reporting provisions of all applicable Laws.
(h) Neither ARG nor any of its Subsidiaries has constituted a “"distributing corporation” " or a “"controlled corporation” " (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during in the two (2) year period ending on years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “"plan” " or “"series of related transactions” " (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreementacquisition.
(pi) None Neither ARG nor any of its Subsidiaries has agreed, or is required to make, any adjustment under Section 481(a) of the Stewardship Entities Code, and no Governmental Entity has engaged proposed in writing any transaction that such adjustment or change in accounting method.
(j) Neither ARG nor any of its Subsidiaries has executed or entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local or foreign Law, and neither ARG nor any of its Subsidiaries is subject to disclosure under Treasury Regulation Section 1.6011-4 any private letter ruling of the IRS or 1.6011-4T, or comparable ruling of any other Governmental Entity.
(k) Neither ARG nor any of its Subsidiaries has participated in any “confidential corporate tax shelter” ("deferred gains" with respect to any "deferred intercompany transactions," within the meaning of Treasury Regulation Section 301.6111ss. 1.1502-2(a)(2)) or a “potentially abusive tax shelter” (13, and none of ARG's Subsidiaries has an "excess loss account" within the meaning of Treasury Regulation Section 301.6112ss. 1.1502-1(b))19.
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(rl) No power of attorney granted property owned by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, ARG or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is its Subsidiaries: (i) is property that the relevant Stewardship Entity is or will be required to treat be treated as being owned by another Person under pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code (of 1954, as amended and in effect immediately prior to amendment by the enactment of the Tax Reform Act of 1986), (ii) “constitutes "tax-exempt use property” " within the meaning of Section 168(h168(h)(1) of the Code or (iii) “is "tax-exempt bond financed property” " within the meaning of Section 168(g)(5) of the Code.
(wm) None As of the Indebtedness date hereof and as of the Closing Date, Triarc does not have any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined plan or intention to sell or otherwise dispose of more than 50% of the assets of RTMRG acquired pursuant to the Mergers, except for dispositions made in the ordinary course of business, transfers pursuant to the Triarc Contributions or transfers described in Section 279(b368(a)(2)(C) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or Treasury Regulation ss. 1.368-2(k).
(iin) an “applicable high yield discount obligation” under Section 163(i) As of the Code, date hereof and none as the of the interest on any such indebtedness will be disallowed Closing Date, Triarc (or a member of Triarc's qualified group as defined in Treasury Regulation ss. 1.368-1(d)(4)(ii)) intends to continue the historic business of RTMRG and its Subsidiaries or use a deduction under any other provision significant portion of the Codetheir historic business assets in a business.
Appears in 1 contract
Tax Matters. (aA) Each of the Stewardship Entities (i) has timely filed or has had timely All Tax Returns that are required to be filed on its behalf or before the Effective Date (taking into account any extension of time within which to file) each Return required to be filed or sent by it to any Taxing Authority in respect of any Taxes, each of which was correctly completed in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all Taxes due and payable for all Tax periods or portions thereof whether or not shown on such Returns, (iii) established on the books of account of the Stewardship Entities, in accordance with GAAP and consistent with past practices, adequate reserves for the payment of any Taxes not then due and payable and (iv) complied in all material respects with all applicable Laws relating to the withholding of Taxes and the payment thereof in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension extensions of time within which to file which have not expired) by or with respect to the FFSW Group, including FFSW and its Subsidiaries, have been or will be timely filed on or before the Effective Date, (B) all such Tax Returns are or will be true and complete in all material respects, (C) all Taxes shown to be due on the Tax Returns referred to in clause (A) have been or will be timely paid in full and all other Taxes that are imposed on any Returnmember of the FFSW Group and that have due dates on or before the Effective Date have or will be paid, which Return (D) the Tax Returns referred to in clause (A) are not currently under examination and have not been examined by the IRS or the appropriate Tax authority, the FFSW Group has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted extended or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of waived the statute of limitations for any such Tax Returns and the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired, (E) all deficiencies asserted or assessments made as a result of examinations conducted by any taxing authority have been paid in full, (F) no issues that have been raised by the appropriate taxing authority in writing in connection with the examination of any of the Tax Returns referred to in clause (A) are currently pending and (G) no member of the FFSW Group has extended or waived any statutes of limitation with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or ReturnsFFSW. There are no outstanding subpoenas material Liens for Taxes upon the assets of FFSW or requests for information its Subsidiaries, other than with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code Taxes not yet due and payable or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities that are being contested in good faith by appropriate proceedings and for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated which reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed adequate in accordance with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that GAAP have been audited and indicates those Returns that currently are the subject of auditprovided. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have No written claim has ever been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has by any Liability for Taxes Governmental Authority in a jurisdiction where it does not file a Return, neither FFSW nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction its Subsidiaries files Tax Returns that it is or may be subject to taxation by that jurisdiction.
(iii) Except as set forth on Schedule 4.20(i), none FFSW has made available to Washington Federal true and correct copies of the Stewardship Entities United States federal income Tax Returns filed by FFSW for each of the three most recent fiscal years for which such returns have been filed.
(iii) Neither FFSW nor any of its Subsidiaries has any liability with respect to income, franchise or similar Taxes that accrued on or before the end of the most recent period covered by FFSW's Securities Documents filed prior to the date hereof in excess of the amounts accrued or subject to a reserve with respect thereto that are reflected in the financial statements included in FFSW's Securities Documents filed on or prior to the date hereof.
(iv) Neither FFSW nor any of its Subsidiaries is a party to any Contract that would resultTax allocation, separately Tax indemnity or in Tax sharing agreement, is or has been a member of an affiliated group filing consolidated unitary or combined Tax Returns (other than a group the aggregatecommon parent of which is or was FFSW) or, in to the payment knowledge of FFSW, has any liability for Taxes of any “excess parachute payments” within the meaning of Section 280G Person (other than a member of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in partFFSW Group) as a result of arising from the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (Treasury Regulation section 1.1502-6 or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions analogous provision of state, local or foreign Tax Lawlaw, or otherwise has any liability for the Taxes of any Person (other than a member of the FFSW Group) as a transferee or successor, by contract, or otherwise.
(kv) No closing agreements, private letter rulings rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Taxing Authority taxing authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, FFSW and its Subsidiaries and no such agreements agreement or rulings have ruling has been applied for by any Stewardship Entity and are is currently pending.
(lvi) Except as set forth on Schedule 4.20(lin Section 5.03(p)(vi) of FFSW's Disclosure Schedule, neither FFSW nor any of its Subsidiaries maintains any compensation or benefits plans, programs or arrangements the payments under which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, 280G or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) 424 of the Code during and the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 regulations issued thereunder (or any similar provision of Lawstate or local laws), as a transferee or successor, by Contract, or otherwise.
(oA) No Tax is required to be withheld pursuant to Section 1445 of the Code as a result of the Transaction and (B) all Taxes that FFSW or any of its Subsidiaries is or was required by law to withhold, collect or deposit have been duly withheld, collected or deposited and, to the extent required by applicable law, have been paid to the proper Governmental Authority or other Person.
(viii) None of the Stewardship Entities constitutes FFSW or any of its Subsidiaries has been either a “"distributing corporation” " or a “"controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) " in a distribution of shares qualifying for tax-free treatment under occurring during the last five years in which the parties to such distribution treated the distribution as one to which Section 355 of the Code that is applicable.
(ix) None of FFSW or any of its Subsidiaries will be required to include amounts in income, or exclude items of deduction, in a taxable period beginning after the Effective Date as a result of (i) took place during a change in method of accounting occurring prior to the two (2) year period ending on the date of this Agreement or Effective Date, (ii) could otherwise constitute part of an installment sale or open transaction arising in a “plan” taxable period (or “series of related transactions” portion thereof) ending on or before the Effective Date, (within iii) a prepaid amount received, or paid, prior to the meaning of Section 355(eEffective Date or (iv) of deferred intercompany gains or losses, intercompany items, or similar items arising prior to the Code) in conjunction with the transactions contemplated by this AgreementEffective Date.
(px) None of the Stewardship Entities FFSW or any of its Subsidiaries has engaged in any transaction that is subject could give rise to disclosure (i) a registration obligation with respect to any Person under Treasury Regulation Section 1.6011-4 6111 of the Code or 1.6011-4Tthe regulations thereunder, (ii) a list maintenance obligation with respect to any Person under Section 6112 of the Code or the regulations thereunder, or has participated in any “confidential corporate tax shelter” (within iii) a disclosure obligation as a "reportable transaction" under Section 6011 of the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within Code and the meaning of Treasury Regulation Section 301.6112-1(b))regulations thereunder.
(qxi) None of the Stewardship Entities FFSW or any of its Subsidiaries has or has had a “permanent establishment” establishment in any country other than the United Statesforeign country, as such term is defined under in any applicable Tax treaty or convention between the United States and such other foreign country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on FFSW or any such indebtedness will be disallowed as of its Subsidiaries has engaged in a deduction under trade or business within, or derived any other provision of the Codeincome from, any foreign country.
Appears in 1 contract
Samples: Merger Agreement (First Federal Banc of the Southwest Inc)
Tax Matters. (a) Each of Except as set forth in the Stewardship Entities (i) attached “Taxes Schedule,” each Seller has timely filed or has had timely filed on its behalf (taking into account any extension of time within which to file) each Return all Tax Returns required to be filed or sent by it to any Taxing Authority in respect of any Taxesit, each of which was correctly completed such Tax Return has been prepared in compliance with all applicable laws and regulations, and all such Tax Returns are true and accurate in all material respects and accurately reflected any material Liability for Taxes of the relevant Stewardship Entity, and any Affiliate of such entity, covered by such Return, (ii) timely and properly paid (or had paid on its behalf) all respects. All Taxes due and payable by any Seller have been paid. Each Seller has delivered to Purchaser correct and complete copies of all federal income Tax Returns filed with respect to such Seller, and all examination reports, and statements of deficiencies assessed against or agreed to by any Seller with respect to such taxable periods.
(b) Except as set forth in the attached Taxes Schedule:
(i) with respect to each taxable period of each Seller, either such taxable period has been audited by the relevant Taxing Authority or the time for all assessing or collecting income Tax periods with respect to each such taxable period has closed and such taxable period is not subject to review by any relevant Taxing Authority;
(ii) no deficiency or portions thereof whether proposed adjustment which has not been settled or not shown on such Returnsotherwise resolved for any amount of Tax has been proposed, asserted or assessed by any Taxing Authority against any Seller;
(iii) established on no Seller has consented to extend the books of account of the Stewardship Entities, time in accordance with GAAP and consistent with past practices, adequate reserves for the payment of which any Taxes not then due and payable and Tax may be assessed or collected by any Taxing Authority;
(iv) complied no Seller has requested or been granted an extension of the time for filing any Tax Return to a date later than the Closing Date;
(v) there is no action, suit, Taxing Authority proceeding or audit now in progress, pending or, to Sellers’ Knowledge, threatened against or with respect to any Seller with respect to any Tax;
(vi) no Seller is a party to or bound by any Tax allocation or Tax sharing agreement, and no Seller has any current or potential contractual obligation to indemnify any other Person with respect to Taxes;
(vii) no Seller reasonably expects any Taxing Authority to claim or assess any additional Taxes for any period;
(ix) no claim has ever been made by a Taxing Authority in a jurisdiction where a Seller does not pay Tax or file Tax Returns that such Seller is or may be subject to Taxes assessed by such jurisdiction; and
(x) each Seller has withheld and paid all material respects with all applicable Laws relating Taxes required to the withholding of Taxes have been withheld and the payment thereof paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, shareholder independent contractor or other third party.
(b) Each of the Stewardship Entities has made (or caused to be made on its behalf) all estimated Tax payments required to have been made to avoid any underpayment penalties.
(c) There are no Encumbrances for Taxes upon any assets of any of the Stewardship Entities, except Permitted Encumbrances.
(d) None of the Stewardship Entities has requested any extension of time within which to file any Return, which Return has not since been filed.
(e) No deficiency for any Taxes has been proposed, asserted or assessed against any of the Stewardship Entities that has not been resolved and paid in full. No waiver, extension or comparable consent given by any of the Stewardship Entities regarding the application of the statute of limitations with respect to any Taxes or any Return is outstanding, nor is any request for any such waiver or consent pending. Except as set forth on Schedule 4.20(e), there has been no Tax audit or other administrative proceeding or court proceeding with regard to any Taxes or any Return of any of the Stewardship Entities for any Tax year subsequent to the year ended December 31, 2015, nor is any such Tax audit or other proceeding pending, nor has there been any notice to any of the Stewardship Entities by any Taxing Authority regarding any such Tax audit or other proceeding, nor, to the Knowledge of Stewardship, is any such Tax audit or other proceeding threatened with regard to any Taxes or Returns. There are no outstanding subpoenas or requests for information with respect to any of the Returns of any of the Stewardship Entities. None of the Stewardship Entities has entered into a closing agreement pursuant to Section 7121 of the Code or any similar provision under any other Law.
(f) To the Knowledge of Stewardship, no additional Taxes will be assessed against any of the Stewardship Entities for any Tax period or portion thereof ending on or prior to the Effective Time that will exceed the estimated reserves for such Taxes established by the Stewardship Entities. To the Knowledge of Stewardship, there are no unresolved questions, claims or disputes concerning the Liability for Taxes of any of the Stewardship Entities.
(g) Schedule 4.20(g) lists all federal, state, local and foreign income Returns filed with respect to the Stewardship Entities for taxable periods ended on or after December 31, 2015, indicates those Returns that have been audited and indicates those Returns that currently are the subject of audit. True and complete copies of the Returns of each of the Stewardship Entities, as filed with the Internal Revenue Service and all state or local Tax jurisdictions for the years ended December 31, 2015, 2016 and 2017 have been provided or made available to Columbia.
(h) To the Knowledge of Stewardship, none of the Stewardship Entities has any Liability for Taxes in a jurisdiction where it does not file a Return, nor has any of the Stewardship Entities received notice from a Taxing Authority in such a jurisdiction that it is or may be subject to taxation by that jurisdiction.
(i) Except as set forth on Schedule 4.20(i), none of the Stewardship Entities is a party to any Contract that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code, and the consummation of the transactions contemplated by this Agreement will not be a factor causing payments to be made by any of the Stewardship Entities or any other Person that are not deductible (in whole or in part) as a result of the application of Section 280G of the Code.
(j) None of the Stewardship Entities will be required to include in a taxable period ending after the Effective Time taxable income attributable to income that accrued in a taxable period prior to the Effective Time but was not recognized for Tax purposes in such prior taxable period (or to exclude from taxable income in a taxable period ending after the Effective Time any deduction the recognition of which was accelerated from such taxable period to a taxable period prior to the Effective Time) as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting, Code Section 481 or Code Section 108(i) or comparable provisions of state, local or foreign Tax Law.
(k) No closing agreements, private letter rulings or similar agreements or rulings have been entered into or issued by any Taxing Authority with respect to any of the Stewardship Entities which would be binding following the Effective Time, and no such agreements or rulings have been applied for by any Stewardship Entity and are currently pending.
(l) Except as set forth on Schedule 4.20(l), none of the Stewardship Entities is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or other arrangements that are not primarily related to Taxes).
(m) Neither Stewardship nor Stewardship Bank has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) None of the Stewardship Entities (i) has been a member of an affiliated group filing a consolidated Return (other than a group the common parent of which was Stewardship) or (ii) has any Liability for the Taxes of any Person (other than Stewardship or Stewardship Bank) under Treasury Regulations Section 1.1502-6 (or any similar provision of Law), as a transferee or successor, by Contract, or otherwise.
(o) None of the Stewardship Entities constitutes either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code that (i) took place during the two (2) year period ending on the date of this Agreement or (ii) could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(p) None of the Stewardship Entities has engaged in any transaction that is subject to disclosure under Treasury Regulation Section 1.6011-4 or 1.6011-4T, or has participated in any “confidential corporate tax shelter” (within the meaning of Treasury Regulation Section 301.6111-2(a)(2)) or a “potentially abusive tax shelter” (within the meaning of Treasury Regulation Section 301.6112-1(b)).
(q) None of the Stewardship Entities has a “permanent establishment” in any country other than the United States, as such term is defined under any applicable Tax treaty between the United States and such other country.
(r) No power of attorney granted by any of the Stewardship Entities relating to Taxes is currently in force.
(s) Each of the Stewardship Entities reported all transactions that could give rise to an underpayment of Tax (within the meaning of Section 6662 of the Code) on the relevant Returns in a manner for which there is substantial authority, or adequately disclosed such transactions on the Returns as required in accordance with Section 6662(d)(2)(B) of the Code.
(t) There is no Contract, plan or arrangement, including this Agreement, pursuant to which any current or former employee of any of the Stewardship Entities would be entitled to receive any payment as a result of the transactions contemplated by this Agreement that would not be deductible under Section 404 or 162(m) of the Code.
(u) Except as set forth on Schedule 4.20(u), none of the Stewardship Entities has been a member of any partnership or joint venture or the holder of a beneficial interest in any trust for any period for which the statute of limitations for any Taxes potentially applicable as a result of such membership or holding has not expired.
(v) No property of any Stewardship Entity is (i) property that the relevant Stewardship Entity is or will be required to treat as being owned by another Person under the provisions of Section 168(f)(8) of the Code (as in effect prior to amendment by the Tax Reform Act of 1986), (ii) “tax-exempt use property” within the meaning of Section 168(h) of the Code or (iii) “tax-exempt bond financed property” within the meaning of Section 168(g)(5) of the Code.
(w) None of the Indebtedness of any Stewardship Entity constitutes (i) “corporate acquisition indebtedness” (as defined in Section 279(b) of the Code) with respect to which any interest deductions may be disallowed under Section 279 of the Code or (ii) an “applicable high yield discount obligation” under Section 163(i) of the Code, and none of the interest on any such indebtedness will be disallowed as a deduction under any other provision of the Code.
Appears in 1 contract
