Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable. (b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects. (c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business. (d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes. (e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect. (f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties. (g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty. (h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h). (i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution). (j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger. (k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Clearwire Corp), Transaction Agreement and Plan of Merger (New Clearwire CORP)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries Sprint Assets is subject to any material Encumbrance Encumbrances for Taxes, Taxes except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire Sprint or any of its Subsidiaries with respect to the Sprint Assets and the business in which the Sprint Assets have been used have been timely filed, filed and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) All material Taxes owed by Clearwire Sprint and its Subsidiaries (whether or not shown on any Tax Return) with respect to the Sprint Assets and the business in which the Sprint Assets have been used have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in ClearwireSprint’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there There is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiariesrelating to the Sprint Assets and the business in which the Sprint Assets have been used. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire Neither Sprint Sub LLC nor any of its Subsidiaries the Transfer Entities is or by virtue of the LLC Contribution will be (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into a party to any waivers or extensions of the statute of limitations with respect to material TaxesTaxes (in each case other than with respect to Taxes that are the subject of the indemnification provided in Section 13.1 hereof).
(e) Clearwire Sprint has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries the Sprint Assets and the business in which the Sprint Assets have been used that, if upheld, would, individually or would result in the aggregate, reasonably be expected to have payment of a Clearwire Material Adverse Effectmaterial amount of Tax.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Sprint and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesSprint Assets and the business in which the Sprint Assets have been used.
(g) Neither Clearwire Sprint nor any of its Subsidiaries has has, with respect to the Sprint Assets and the business in which the Sprint Assets have been used, entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, ” or any reportable transaction the principal purpose of which was tax avoidance, avoidance within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Transaction Agreement and Plan of Merger, Transaction Agreement and Plan of Merger (Sprint Nextel Corp), Transaction Agreement and Plan of Merger (New Clearwire CORP)
Tax. Except as would not reasonably be expected to have a Purchaser Material Adverse Effect:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bi) All material all Tax Returns required to be filed by Clearwire or any of its with respect to the Purchaser and the Purchaser Subsidiaries have been timely filed, ; (ii) all Taxes required to be shown on such Tax Returns or otherwise due in respect of the Purchaser and the Purchaser Subsidiaries have been timely paid; (iii) all those such Tax Returns are true, correct and complete in all material respects.
; (civ) All material no adjustment relating to such Tax Returns has been proposed in writing by any Governmental Authority; (v) there are no pending Actions for the assessment or collection of Taxes owed by Clearwire and its Subsidiaries against the Purchaser or the Purchaser Subsidiaries; (whether or not shown vi) there are no Tax liens on any Tax Returnassets of the Purchaser or the Purchaser Subsidiaries; (vii) have been paideach of the Purchaser and the Purchaser Subsidiaries has properly and timely withheld, except for those Taxes being contested in good faith collected and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for deposited all Taxes that may arise solely as result of actions or transactions following are required to be withheld, collected and deposited under applicable Law; (viii) neither the Execution Date permitted by this Agreement, neither Clearwire Purchaser nor any of its the Purchaser Subsidiaries is doing business in or engaged in a trade or business in any jurisdiction in which it has not filed all required Tax Returns; and (ix) neither the Purchaser nor any of the Purchaser Subsidiaries has incurred any liability for the Taxes of any Person (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire Purchaser or any of its the Purchaser Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.); and
(eb) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Purchaser and each of its Subsidiaries have withheld and paid over to Purchaser Subsidiary have, in accordance with applicable Law, duly registered with the relevant Taxing Authorities Government Authority, obtained and maintained the validity of all Taxes required national and local tax registration certificates and complied with all requirements imposed by such Government Authorities. No submissions made to have been withheld and paid any Government Authority in connection with payments to employeesobtaining Tax exemptions, independent contractorsTax holidays, creditorsTax deferrals, shareholders Tax incentives or other third parties.
(g) Neither Clearwire nor preferential Tax treatments or Tax rebates contained any misstatement or omission that would have affected the granting of its Subsidiaries has entered intosuch Tax exemptions, preferential treatments or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposesrebates. No action has been taken by Clearwire suspension, revocation or cancellation of any of its Affiliates to treat NewCo LLC such Tax exemptions, preferential treatments or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) rebates is pending or, to the Purchaser’s Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)threatened.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 4 contracts
Samples: Asset Purchase Agreement (Sina Corp), Asset Purchase Agreement (Focus Media Holding LTD), Asset Purchase Agreement (Focus Media Holding LTD)
Tax. (a) None Seller shall prepare (or cause to be prepared) all Tax Returns with respect to the Company required to be filed after the Closing Date for any Pre-Closing Period on a basis consistent with past practice, except to the extent otherwise required by applicable Law. Reasonably in advance of filing any such Tax Return (which in the assets case of Clearwire or any of its Subsidiaries is subject a Tax Return that relates to any material Encumbrance for Income Taxes, except shall not be later than 30 days prior to such filing), Seller shall deliver a copy of such Tax Return, together with all supporting documentation and work papers, to Buyer for liens for Taxes not yet due its review and payablereasonable comment. Buyer will cause such Tax Return (as revised to incorporate Buyer’s reasonable comments) to be timely filed and will provide a copy to Seller.
(b) All material Buyer shall prepare (or cause to be prepared) all Tax Returns with respect to the Company required to be filed after the Closing Date for any Straddle Period on a basis consistent with past practice, except to the extent otherwise required by Clearwire or applicable Law. Reasonably in advance of filing any such Tax Return (which in the case of a Tax Return that relates to Income Taxes, shall not be later than 30 days prior to such filing), Buyer shall deliver a copy of such Tax Return, together with all supporting documentation and workpapers, to Seller for its Subsidiaries have been review and reasonable comment. Buyer will cause such Tax Return (as revised to incorporate Seller’s reasonable comments) to be timely filed, filed and all those Tax Returns are true, correct and complete in all material respectswill provide a copy to Seller.
(c) All material For purposes of determining Seller Taxes owed by Clearwire and its Subsidiaries (whether or not shown on with respect to any Straddle Period of the Company, the portion of any Tax Returnfor such Straddle Period that is attributable to the portion of such Straddle Period ending on the Closing Date shall be:
(i) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for with respect to Taxes that may arise solely as result are (A) Income Taxes, (B) imposed in connection with any sale or other transfer or assignment of actions property (real or transactions following personal, tangible or intangible) or (C) imposed on specific transactions, including payroll taxes, deemed equal to the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since amount that would be payable if the date Tax year of the most recent balance sheet included Company ended on the Closing Date; provided, that all exemptions, allowances, or deductions for the Straddle Period which are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated in proportion to the number of days in such period prior to and including the Closing Date; and
(ii) with respect to Property Taxes that are ad valorem, real property, personal property or other Property Taxes imposed on a periodic basis, deemed to be the amount of such Taxes for the entire period, multiplied by a fraction the numerator of which is the number of calendar days in the Clearwire Financial Statements other than portion of the period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire period.
(d) All tax-sharing agreements or similar agreements (excluding, for the avoidance of doubt, any commercial agreements or contracts entered into in the ordinary course of business.
(dbusiness consistent with past practice and not primarily related to Taxes) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except involving the Company shall be terminated as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleClosing Date and, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of after the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure ScheduleClosing Date, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items Company shall not include be bound thereby or have any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)liability thereunder.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 3 contracts
Samples: Membership Interest Purchase and Sale Agreement (Targa Resources Partners LP), Membership Interest Purchase and Sale Agreement (Targa Resources Corp.), Membership Interest Purchase and Sale Agreement (Targa Resources Corp.)
Tax. (a) None of All Buyer Entities have timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All appropriate Taxing authorities all material Tax Returns in all jurisdictions in which such Tax Returns are required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
. None of the Buyer Entities is the beneficiary of any extension of time within which to file any Tax Return (c) other than any extensions to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes owed by Clearwire and its Subsidiaries of the Buyer Entities (whether or not shown on any Tax Return) that are due have been fully and timely paid, except . There are no Liens for those any material amount of Taxes (other than a Lien for Taxes not yet due and payable or that are being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor appropriate proceedings) on any of its Subsidiaries has incurred the Assets of any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included Buyer Entities. No claim has been made in the Clearwire Financial Statements other than last six years in the ordinary course of businesswriting by an authority in a jurisdiction where any Buyer Entity does not file a Tax Return that such Buyer Entity may be subject to Taxes by that jurisdiction.
(db) Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure ScheduleBuyer Entities has received any written notice of assessment or proposed assessment in connection with any material amount of Taxes, and there is are no currently threatened in writing or pending audit disputes, claims, audits or administrative or judicial proceeding with respect to examinations regarding any Taxes of Clearwire any Buyer Entity or the Assets of any of its SubsidiariesBuyer Entity. Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure Schedule, neither Clearwire nor Buyer Entities has waived any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with in respect to material of any Taxes.
(ec) Clearwire Each Buyer Entity has no Knowledge of any proposed or threatened Tax claims or assessments complied in all material respects with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over all applicable Laws relating to the relevant Taxing Authorities all withholding of Taxes and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee or independent contractor, independent contractors, creditors, shareholders and Taxes required to be withheld and paid pursuant to Sections 1441 and 1442 of the Internal Revenue Code or other third partiessimilar provisions under foreign Law.
(gd) Neither Clearwire nor any During the two-year period ending on the date hereof, none of its Subsidiaries has entered intothe Buyer Entities was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year period ending on the date hereof, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction none of the principal purpose of which Buyer Entities was tax avoidance, a United States real property holding corporation within the meaning of Sections 6011, 6111 or 6112 Section 897(c)(2) of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyInternal Revenue Code.
(he) Except as set forth in Section 6.7(h) None of the Clearwire Disclosure Schedule, each Subsidiary Buyer Entities have participated in any “reportable transaction” within the meaning of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.7071.6011-5(a)(6)(i)(D)4.
Appears in 3 contracts
Samples: Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Simmons First National Corp)
Tax. (a) None of Each Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Company is required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Company are true, correct and complete in all material respects.
(c) . All material Taxes owed (or to be remitted) by Clearwire and its Subsidiaries any Company (whether or not shown on any Tax Return) have been paidpaid to the proper Governmental Body. No claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or may be subject to the payment, except for collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Companies that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.15 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which any Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Taxes being contested in good faith and for which adequate reserves Tax Returns that have been established in Clearwire’s Financial Statements. Except for Taxes audited, (iii) identifies those Tax Returns that may arise solely as result currently are the subject of actions or transactions following the Execution Date permitted by this Agreementaudit, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not dueiv) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding lists all rulings and similar determinations with respect to Taxes of Clearwire requested or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound received by any Company relating to any Company, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material closing agreementelections relating to Taxes that were made by or on behalf of any Company. Hague has delivered or made available to Solterra true, offer in compromisecorrect and complete copies of all Tax Returns filed by, gain recognition agreement and all examination reports, and statements of deficiencies assessed against or agreed to by, any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of Company during the statute of limitations with respect to material Taxessix-year period ending on the date hereof.
(eb) Clearwire Each Company has no Knowledge of any proposed withheld or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatcollected, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities proper Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, stockholder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(c) There is no basis for any Governmental Body to assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted by any Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which has Knowledge.
(d) No Company has waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Company has been requested, granted or currently is in effect.
(e) No Company has filed a consent under Code § 341(f), as in effect prior to the Jobs and Growth Tax Reconciliation Act of 2003, concerning collapsible corporations. No Company has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Company is a party to any Tax allocation, sharing, reimbursement or similar agreement. No Company has been a member of any “affiliated group” as defined in Code § 1504(a) (or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated federal, state, local or foreign income Tax Return (other than a group the common parent of which was Hague). No Company has any Liability for Taxes of any Person (other than any Company) under Treasury Regulation § 1.1502-6 (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Company has participated in an international boycott within the meaning of Code § 999. No Company has agreed, or is required to make, any adjustments under Code § 481(a) by reason of a change in method of accounting or otherwise. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the date hereof. No Company has made, or is bound by, any election under Code § 197 or 1361.
(f) The unpaid Taxes of the Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Balance Sheet (rather than in any notes thereto) and (ii) will 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 Companies in filing their Tax Returns.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoNo Company has, or otherwise participated (directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) in, any that would constitute (i) a “reportable transaction” or “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707§ 1.6011-5(a)(6)(i)(D)4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(h) The execution and delivery of this Agreement and the performance of the Transactions will not cause Solterra or any Company to have any Liability for any Tax.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Quantum Materials Corp.), Merger Agreement (Hague Corp.)
Tax. (a) None of All Seller Entities have timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All appropriate Taxing authorities all material Tax Returns in all jurisdictions in which such Tax Returns are required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
. None of the Seller Entities is the beneficiary of any extension of time within which to file any Tax Return (c) other than any extensions to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes owed by Clearwire and its Subsidiaries of the Seller Entities (whether or not shown on any Tax Return) that are due have been fully and timely paid, except . There are no Liens for those Taxes (other than a Lien for Taxes not yet due and payable or that are being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor appropriate proceedings) on any of its Subsidiaries has incurred the Assets of any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included Seller Entities. No claim has been made in the Clearwire Financial Statements other than last six years in the ordinary course of businesswriting by an authority in a jurisdiction where any Seller Entity does not file a Tax Return that such Seller Entity is or may be subject to Taxes by that jurisdiction.
(db) Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure ScheduleSeller Entities has received any written notice of assessment or proposed assessment in connection with any amount of Taxes, and there is are no currently threatened in writing or pending audit disputes, claims, audits or administrative or judicial proceeding with respect to examinations regarding any Taxes of Clearwire any Seller Entity or the Assets of any of its SubsidiariesSeller Entity. Except as disclosed in Section 6.7(d) None of the Clearwire Disclosure Schedule, neither Clearwire nor Seller Entities has waived any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with in respect to material of any Taxes.
(ec) Clearwire Each Seller Entity has no Knowledge of any proposed or threatened Tax claims or assessments complied in all material respects with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over all applicable Laws relating to the relevant Taxing Authorities all withholding of Taxes and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee or independent contractor, independent contractorsand Taxes required to be withheld and paid pursuant to Sections 1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
(d) The unpaid Taxes of each Seller Entity (i) did not, creditorsas of the most recent fiscal month end, shareholders 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 most recent balance sheet (rather than in any notes thereto) for such Seller Entity and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with past custom and practice of the Seller Entities in filing their Tax Returns.
(e) None of the Seller Entities is a party to any Tax indemnity, allocation or sharing agreement (other than any agreement solely between the Seller Entities and other than any customary Tax indemnifications contained in credit or other third partiescommercial agreements the primary purpose of which agreements does not relate to Taxes) and none of the Seller Entities 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 Seller) or has any Tax Liability of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Law (other than the other members of the consolidated group the common parent of which is or was Seller), or as a transferee or successor.
(f) During the two-year period ending on the date hereof, none of the Seller Entities was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year period ending on the date hereof, none of the Seller Entities was a United States real property holding corporation within the meaning of Section 897(c)(2) of the Internal Revenue Code.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoEach Seller Benefit Plan, employment agreement, or otherwise participated (directly or indirectly) in, any other compensation arrangement of a Seller Entity that is a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, nonqualified deferred compensation plan” within the meaning of Sections 6011, 6111 or 6112 Section 409A of the Internal Revenue Code has a plan document that satisfies the requirements of Section 409A of the Internal Revenue Code and has been operated in compliance with the Treasury Regulations thereunder terms of such plan document and the requirements of Section 409A of the Internal Revenue Code, and the regulations thereunder, in each case such that no Tax is or has received a written opinion been due or payable under Section 409A of the Internal Revenue Code. No Seller Entity has any obligation to gross-up or otherwise reimburse any person for any Tax incurred by such person pursuant to Section 409A, Section 280G or Section 4999 of the Internal Revenue Code or otherwise. All Seller Stock Options and Seller Warrants were granted at no less than “fair market value” for purposes of Section 409A of the Internal Revenue Code, and each Seller Stock Option and Seller Warrant is exempt from a tax advisor that was intended to provide protection against a tax penaltySection 409A of the Internal Revenue Code.
(h) Except as set forth in Section 6.7(h) None of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal Seller Entities will be required to include after the Closing any material adjustment in taxable income tax purposes. No action has been taken by Clearwire or any of its Affiliates pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) 481 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Internal Revenue Code and the Regulations thereunder (or any comparable provision under state or local income foreign Tax law) or, Laws as a result of transactions or events occurring prior to the Knowledge Closing. None of Clearwire, the Seller Entities have participated in any other material items “reportable transaction” within the meaning of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint Treasury Regulation Section 1.6011-4 or any “tax shelter” within the meaning of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Internal Revenue Code Section 6662.
(ji) Section 6.7(jAll Seller Entities have (i) of to the Clearwire Disclosure sets forthextent deferred, properly complied in all material respects, respects with all applicable Laws in order to defer the information concerning any limitations on amount of the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception employer’s share of any indebtedness issued “applicable employment taxes” under Section 2302 of the CARES Act, (ii) to the extent applicable, eligible, and claimed, or intended to be claimed, properly complied in all material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7004 of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, (iii) not deferred any payroll Tax obligations (including those imposed by Clearwire between Sections 3101(a) and 3201 of the Execution Date and the Closing Internal Revenue Code) (for example, by a failure to timely withhold, deposit or remit such amounts in accordance with Sections 10.1(b)(iv)(Fthe applicable provisions of the Internal Revenue Code and the Treasury Regulations promulgated thereunder) pursuant to or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 any U.S. presidential memorandum or executive order, and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)(iv) not sought a PPP Loan.
Appears in 3 contracts
Samples: Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Tax. Any and all payments to any Secured Party by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all Taxes excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxes or other Tax based on gross income imposed by the United States of America (all such Taxes, other than those Taxes described in clauses (i) and (ii) of this Section 3.1.2(a), the “Covered Taxes”). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules. If the Borrower shall make any payment with respect to Covered Taxes under this clause (a) None to or for the benefit of the assets of Clearwire any Secured Party and if such Secured Party shall claim any credit or deduction for such Covered Taxes against any of its Subsidiaries is subject to any material Encumbrance for other Taxes payable by such Secured Party that are not Covered Taxes, except for liens for then such Secured Party shall pay to the Borrower an amount equal to the amount such Secured Party determines, absent manifest error, is the amount by which such other Taxes are actually reduced; provided that the aggregate amount payable by such Secured Party pursuant to this sentence shall not yet due and payable.
(b) All material Tax Returns required to be filed exceed the aggregate amount previously paid by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Borrower with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material such Covered Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 3 contracts
Samples: Loan Guarantee Agreement (Oglethorpe Power Corp), Loan Guarantee Agreement (Georgia Power Co), Loan Guarantee Agreement (Oglethorpe Power Corp)
Tax. (a) None of The Company and the assets of Clearwire or any of its Subsidiaries is subject to any have duly and timely filed with the appropriate taxing authorities all material Encumbrance for Taxesfederal, except for liens for Taxes not yet due state and payable.
(b) All local income Tax Returns and all other material Tax Returns required to be filed by Clearwire through the date hereof and will duly and timely file any such returns required to be filed on or any of its Subsidiaries have been timely filed, and all those prior to the Closing. Such Tax Returns and other information filed are true(and, correct to the extent they will be filed prior to the Closing, will be) complete and complete accurate in all material respects. Neither the Company nor the Subsidiaries have pending any request for an extension of time within which to file federal, state or local income Tax Returns.
(b) All Taxes of the Company and the Subsidiaries in respect of periods (or portions thereof) ending at or prior to the Closing have been paid by the Company and the Subsidiaries or such Taxes (other than income Taxes) are shown as due and payable after the Closing on the financial statements of the Companies and the Subsidiaries in accordance with GAAP.
(c) All No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes owed by Clearwire and its or material Tax Returns of the Company or the Subsidiaries. Neither the Company nor any of the Subsidiaries has received a written notice of any such pending audits or proceedings. There are no outstanding waivers extending the statutory period of limitation relating to the payment of Taxes due from the Company or any of the Subsidiaries.
(d) Neither the IRS nor any other taxing authority (whether domestic or not shown on foreign) has asserted in writing, or to the best knowledge of the Company and the Subsidiaries, is threatening to assert, against the Company or any Tax Returnof the Subsidiaries any material deficiency or material claim for Taxes in excess of the reserves established therefor.
(e) have been paidThere are no Liens for Taxes upon any property or assets of the Company or any of the Subsidiaries, except for those Liens for Taxes not yet due and payable and liens for Taxes that are being contested in good faith by appropriate proceedings as set forth on Schedule 3.20(e) and for as to which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessaccordance with GAAP.
(df) Except as disclosed in Section 6.7(d) of Neither the Clearwire Disclosure Schedule, there is no currently pending audit Company nor the Subsidiaries has any obligation under any Tax sharing agreement or administrative or judicial proceeding similar arrangement with any other Person with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any such other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesPerson.
(g) Neither Clearwire the Company nor the Subsidiaries will recognize any taxable income or become liable for any Tax as a result of any of its Subsidiaries the Internal Transactions. The Company has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) never been treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed corporation for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)is not liable for any Tax on its income.
Appears in 2 contracts
Samples: Note Purchase Agreement (American Real Estate Partners L P), Note Purchase Agreement (Icahn Carl C Et Al)
Tax. (a) None There are no outstanding audits or other administrative or judicial actions by any Governmental Authority with regard to, or related to, the Tax treatment of the assets Business or the Transferred Assets, nor to the Knowledge of Clearwire Seller, as of the date hereof, is any such audit or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payableother administrative or judicial action pending or threatened.
(b) All Seller and its Affiliates have timely paid all material Tax Returns Taxes which will have been required to be filed by Clearwire paid on or any prior to the date hereof in respect of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respectsthe Business or the ownership of the Transferred Assets.
(c) All material Taxes owed by Clearwire required to have been withheld, collected or remitted with respect to the Business or the Transferred Assets have been withheld, collected or remitted, as applicable, to the applicable Governmental Authority in accordance with Applicable Law.
(d) Seller and its Subsidiaries Affiliates have materially complied with all Tax reporting, withholding, and disclosure requirements applicable to the Ceded Insurance Contracts under the Code, Treasury Regulations, and forms issued by the Internal Revenue Service and under any corresponding or similar provision of state or local law.
(whether or not shown on e) Seller and its Affiliates have duly and timely (including any applicable extensions) filed all material Tax Return) Returns required to have been paidfiled by them in respect of the Business or the ownership of the Transferred Assets, and all such Tax Returns are accurate and complete in all material respects as they relate to the Business or the Transferred Assets.
(f) All material deficiencies asserted in writing or assessments made in writing with respect to the Business or the ownership of the Transferred Assets by a Tax authority have been paid in full, except for those Taxes to the extent they are being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesthrough appropriate proceedings.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated There are no material Liens for Taxes (directly or indirectlyother than Permitted Liens) in, any “listed transaction”, or any reportable transaction upon the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyTransferred Assets.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, Seller and each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates are not and have not been a party to treat NewCo LLC any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4 with respect to the Business or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)the Transferred Assets.
(i) Except as set forth There is no written claim pending from any Tax authority in Section 6.7(i) any jurisdiction where the Seller does not file Tax Returns in respect of the Clearwire Disclosure Schedule, Business that the Merger and other transactions contemplated Business is or may be subject to taxation by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)jurisdiction.
(j) Section 6.7(j) The reserves reflected with respect to the Ceded Insurance Contracts on the consolidated federal income Tax Return filed by the affiliated group of which Seller is a member for the Clearwire Disclosure sets forthyear ending December 31, 2014, and since such date, have been determined in all material respectsrespects in the manner required by the Code and other Applicable Law, and to the information concerning any limitations on extent relevant to the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerdetermination and maintenance thereof, have been determined and maintained in all material respects in accordance with SAP.
(k) Any liabilities The Tax treatment of Clearwireeach Ceded Insurance Contract is not, with and, since the possible exception time of any indebtedness issued by Clearwire between issuance, has not been, materially less favorable to the Execution Date purchaser, policyholder or intended beneficiaries thereof, than the Tax treatment and purported to qualify for at the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) time of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)issuance.
Appears in 2 contracts
Samples: Master Transaction Agreement (CVS HEALTH Corp), Master Transaction Agreement (Aetna Inc /Pa/)
Tax. 10.1 The Seller has duly and timely (ataking into account any valid extensions) None of filed, or caused to be filed, all Tax returns that relate to the assets of Clearwire or Business Assets (including any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bincome derived therefrom) All material Tax Returns required to be filed by Clearwire it (or any of on its Subsidiaries have been timely filed, behalf) and all those such Tax Returns are returns were true, correct and complete in all material respects. All Taxes relating to the Business Assets (including any income derived therefrom) due and owing by the Seller have been timely paid or, where payment is not yet due, the Seller has made an adequate provision for such Taxes.
(c) All material Taxes owed 10.2 The Seller has not received any claim made by Clearwire and its Subsidiaries (whether a Tax Authority in a jurisdiction where the Seller does not file Tax returns that the Seller is or not shown may be subject to taxation by that jurisdiction in relation to the Business Assets or any income derived therefrom.
10.3 There is no Tax deficiency relating to the Business Assets or any income derived therefrom outstanding, assessed or proposed in writing against the Seller, nor has the Seller executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.
10.4 No Tax audit, action, suit, proceeding, investigation or claim is now pending or, threatened against the Seller, by any Tax Return) have been paid, except for those Taxes being contested Authority in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions connection with any Tax returns filed by the Seller or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire its assets or any of its Subsidiaries. Except as disclosed in Section 6.7(d) income that relate to the Business Assets.
10.5 There are no Tax rulings, requests for rulings or closing agreements relating to the Taxation of the Clearwire Disclosure ScheduleBusiness Assets that could reasonably be expected to affect the Purchaser’s liability for Taxes with respect to the Business Assets for any period after the Closing Date. The Seller has provided to the Purchaser complete and correct copies of all private letter rulings, neither Clearwire nor revenue agent reports, information document requests, 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 its Subsidiaries the Seller and relating to Taxes with respect to the Business Assets (iincluding any income derived therefrom) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of for all taxable periods for which the statute of limitations with respect to material Taxeshas not yet expired.
10.6 The Seller’s has not filed Tax returns in any jurisdiction outside the United States as a result of having a permanent establishment or other place of business in that jurisdiction related to the Business Assets.
10.7 The Seller has complied with all Laws relating to the payment and withholding of Taxes (e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire the extent relating to the Business Assets or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(fincome derived therefrom) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have has duly and timely withheld and paid over to the relevant Taxing Authorities appropriate Tax Authority all Taxes amounts required to have been be so withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesunder applicable laws.
10.8 There are no Encumbrances for Taxes (gother than Taxes not yet due and payable) Neither Clearwire nor upon any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyBusiness Assets.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Asset Purchase Agreement (FXCM Inc.), Asset Purchase Agreement (FXCM Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any on behalf of its Subsidiaries the Seller have been duly filed on a timely basis and such Tax Returns were, when filed, and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) . All material Taxes owed shown to be payable on such Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are due and payable by Clearwire and its Subsidiaries the Seller with respect to items or periods covered by such Tax Returns (whether or not shown on any such Tax Return) Returns). The Seller has withheld and paid over all Taxes required to have been paidwithheld and paid over, except and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens (other than Permitted Liens) on any of the Purchased Assets with respect to Taxes.
(b) The amount of the Seller’s liabilities for those unpaid Taxes being contested for all periods through December 31, 2013 does not, in good faith and the aggregate, exceed the amount of the liability accruals for which adequate reserves have been established in Clearwire’s Taxes reflected on the Financial Statements. Except , and the Most Recent Balance Sheet properly accrue in accordance with GAAP all liabilities for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in Seller payable after December 31, 2013 attributable to transactions and events occurring prior to such date. No liability for Taxes of Seller has been incurred or material amount of taxable income has been realized (or prior to and including the Clearwire Financial Statements Closing Date will be incurred or realized) after December 31, 2013 other than in the ordinary course of business.
(dc) Except as disclosed in Section 6.7(d) No audit of the Clearwire Disclosure ScheduleTax Returns of or including the Seller by a Governmental or Regulatory Authority is in process, there is no currently pending audit or, to Seller’s Knowledge, threatened or administrative pending. No deficiencies exist or judicial proceeding have been asserted with respect to Taxes of Clearwire the Seller. Seller has not received notice that it has not filed a Tax Return or paid Taxes required to be filed or paid. Seller is not a party to any action or proceeding for assessment or collection of Taxes, nor, to Seller’s Knowledge, has such event been asserted or threatened against Seller or any of its Subsidiariesthe Purchased Assets. Except as disclosed There are no agreements or waivers currently in Section 6.7(d) effect that provide for an extension of time for the Clearwire Disclosure Schedule, neither Clearwire nor any assessment of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity against the Seller.
(d) No written claim has ever been delivered to the Seller by a Governmental Entity in a jurisdiction where the Seller does not file Tax Returns that the Seller is or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect may be subject to material Taxestaxation by that jurisdiction.
(e) Clearwire Seller is not, and has no Knowledge never been, a party to any tax sharing agreement. Since inception, the Seller has not been a distributing corporation or a controlled corporation in a transaction described in Section 355(a) of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectCode.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire The Seller has collected and each of its Subsidiaries have withheld and paid over remitted all applicable sales or use Taxes to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesappropriate Governmental Entity.
(g) Neither Clearwire nor any of its Subsidiaries The Seller has entered into, or otherwise participated (directly or indirectly) in, disclosed to the IRS on the appropriate Tax Returns any “Reportable Transaction” (as defined in Treasury Regulation section 1.6011-4(b)) in which the Seller has participated. The Seller has retained all documents and other records pertaining to any Reportable Transaction in which the Seller has participated, including documents and other records listed transaction”, in Treasury Regulation section 1.6011-4(g) and any other documents or other records which are related to any reportable transaction Reportable Transaction in which the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Seller has participated but not listed in Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyRegulation section 1.6011-4(g).
(h) Except as set forth in Section 6.7(h) No bulk sale/transfer statute or law, including, without limitation, the California “Bulk Sales” publication requirements under Division 6 of the Clearwire Disclosure ScheduleCalifornia Commercial Code, each Subsidiary of Clearwire is either (x) treated as a partnership applies to the transaction contemplated hereby and the Buyer will suffer no loss, cost or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) expense because of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 non-compliance of the Code and the Regulations thereunder (parties hereto with any bulk sale/transfer statute or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Icad Inc), Asset Purchase Agreement (Icad Inc)
Tax. Each of the Contributing Parties makes the following representations severally and not jointly and, for the avoidance of doubt, solely with respect to such Contributing Party’s Contributed Interests:
(a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required by applicable Law to be filed by Clearwire or any of its Subsidiaries with respect to such Contributing Party’s Contributed Interests have been duly and timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All material Taxes owed due and payable by Clearwire and its Subsidiaries or with respect to such Contributing Party’s Contributed Interests (regardless of whether or not shown on any Tax Return) have been paidpaid in full.
(c) There is no action, except suit, proceeding, investigation, audit or claim now pending against, or with respect to, such Contributing Party’s Contributed Interests in respect of any material Tax or material Tax assessment, nor has any claim for those Taxes being contested additional material Tax or material Tax assessment been asserted in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted writing by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessTax Authority.
(d) Except as disclosed No written claim has been made by any Tax Authority in Section 6.7(d) of the Clearwire Disclosure Schedule, there a jurisdiction where a Tax Return is no not currently pending audit or administrative or judicial proceeding filed with respect to Taxes of Clearwire such Contributing Party’s Contributed Interests indicating that it is or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party may be subject to or bound by any material closing agreementTax in such jurisdiction, offer nor has any such assertion been threatened. or proposed, in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxeswriting.
(e) Clearwire Such Contributing Party has no Knowledge outstanding request for any extension of time within which to pay any proposed material Taxes or threatened file any Tax claims or assessments Returns with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectsuch Contributing Party’s Contributed Interests.
(f) Except as disclosed in Section 6.7(f) There has been no waiver or extension of any applicable statute of limitations for the Clearwire Disclosure Schedule, Clearwire and each assessment or collection of its Subsidiaries have withheld and paid over any material Taxes with respect to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiessuch Contributing Party’s Contributed Interests.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any Such Contributing Party is not a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, foreign person” within the meaning of Sections 6011, 6111 or 6112 Section 1445 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyCode.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, There are no Tax Liens on such Contributing Party’s Contributed Interests except for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Permitted Liens.
(i) Except None of the Contributing Parties’ Contributed Interests are treated as set forth an interest in a “partnership” as defined in Section 6.7(i) 761 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Code.
(j) For each Contributing Party that is a partnership, limited liability company, grantor trust or Subchapter S corporation under the Code, (a) for the period that the Contributing Party owns RH Units, at no time during such period will “substantially all” (within the meaning of Treasury Regulation Section 6.7(j1.7704-1(h)(3)) of the Clearwire Disclosure sets forthvalue of any beneficial owner’s interest in such Contributing Party be attributable to the Contributing Party’s ownership (direct or indirect) of RH Units; and (b) the Contributing Party does not have, in all material respectsacquiring the RH Units, a principal purpose of permitting Remora Holdings to satisfy the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined 100 partner limitation in Treasury Regulation Section 1.7071.7704-5(a)(6)(i)(D1(h)(1), and, to the best of the Contributing Party’s knowledge, no owner of a beneficial interest in the Contributing Party has such a principal purpose.
Appears in 2 contracts
Samples: Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.), Contribution, Conveyance, Assignment and Assumption Agreement (Remora Royalties, Inc.)
Tax. (a) None 16.1 All notices, returns, computations and registrations of the assets Company and, so far as the Vendor is aware, Connect Holdings and Connect for the purposes of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries Taxation have been timely filed, made punctually on a proper basis and all those Tax Returns are true, correct and complete in all material respects.
(c) All 16.2 The Company and, so far as the Vendor is aware, Connect Holdings and Connect have duly submitted all claims and disclaimers, which have been assumed to have been made for the purposes of the Accounts where the last date for making such claims or disclaimers has passed.
16.3 The Company is not involved in any material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on dispute with any Tax ReturnAuthority nor is any such dispute pending or threatened by or against the Company.
16.4 So far as the Vendor is aware, neither Connect Holdings nor Connect are involved in any material dispute with any Tax Authority nor is any such dispute pending or threatened by or against Connect Holdings or Connect.
16.5 The Company and, so far as the Vendor is aware, Connect Holdings and Connect has preserved and retained (to the extent required by law) materially complete and accurate records relating to its Tax affairs. The Company and, so far as the Vendor is aware, Connect Holdings and Connect have been paid, except sufficient records relating to past events to permit accurate calculation of the Taxation liability or relief which would arise upon a disposal or realisation on completion of each asset owned by that company at the Accounts Date or acquired by that company since that date but before Completion.
16.6 The Accounts reserve or provide in full for those Taxes being contested in good faith and all current Taxation for which adequate reserves the Company and/or, so far as the Vendor is aware, Connect Holdings or Connect (as appropriate) was liable as at the Accounts Date.
16.7 The Company and, so far as the Vendor is aware, Connect Holdings and Connect have paid all Taxation that has become due and are under no liability to pay any penalty, interest, surcharge or fine in connection with any Taxation.
16.8 The Company and, so far as the Vendor is aware, Connect Holdings and Connect have made all deductions and withholdings in respect of, or on account of, any Taxation from any payments made by it which it is obliged or entitled to make (and to the extent required to do so) has accounted in full to the relevant Tax Authority.
16.9 The Company and, so far as the Vendor is aware, Connect Holdings and Connect are not and have never been established liable to Taxation in Clearwireany jurisdiction other than the United Kingdom.
16.10 Any arrangements to which the Company and/or, as far as the Vendor is aware, Connect Holdings or Connect (as appropriate) are/is or were /was a party to which the provisions of section 770A and Schedule 28AA Taxes Act apply were entered into and are as at Completion on arm’s Financial Statements. Except for Taxes that may length terms.
16.11 The Tax Disclosure Letter contains full particulars of all claims and elections made under sections 152 or 153 TCGA insofar as they could affect the chargeable gain or allowable loss which would arise solely in the event of a disposal by the Company of any assets (except where the relevant gain is treated as result having accrued prior to the Accounts Date).
16.12 So far as the vendor is aware, the Tax Disclosure Letter contains full particulars of actions all claims and elections made under sections 152 or transactions following 153 TCGA insofar as they could affect the Execution Date permitted chargeable gain or allowable loss which would arise in the event of a disposal by this AgreementConnect Holdings or Connect of any assets (except where the relevant gain is treated as having accrued prior to the Accounts Date).
16.13 No rents, neither Clearwire nor any interest, annual payments or other sums of its Subsidiaries has incurred any liability (whether an income nature paid or not due) for material Taxes since payable by the date Company or, so far as the Vendor is aware, Connect Holdings or Connect or which the Company or, so far as the Vendor is aware, Connect Holdings or Connect is under an existing written contractual obligation to pay in the future, in each of the most recent balance sheet included foregoing circumstances in the Clearwire Financial Statements excess of £10,000 and other than in relation to the ordinary course MYL Debt, are or may be wholly or partially disallowable under any law in force as at Completion as deductions, management expenses or charges in computing profits for the purposes of businesscorporation tax.
(d) Except as disclosed in Section 6.7(d) 16.14 The execution or completion of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement this Agreement or any other agreement with event since the Accounts Date will not result in any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required chargeable asset being deemed to have been withheld disposed of and paid in connection with payments reacquired by the Company or, so far as the Vendor is aware, Connect Holdings or Connect (as appropriate) for Taxation purposes pursuant to employees, independent contractors, creditors, shareholders section 178 or 179 TCGA or as a result of any other third partiesevent since the Accounts Date.
(g) Neither Clearwire nor 16.15 The Company and/or, so far as the Vendor is aware, Connect Holdings or Connect are not and will not be liable to make any payment or repayment for any Group Relief surrendered to them within the last six years ending on the Completion Date.
16.16 The Company is not registered for the purposes of its Subsidiaries has entered intoVAT and is not required to be so registered.
16.17 So far as the Vendor is aware, Connect Holdings or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose Connect is a member of which was tax avoidance, a group of companies within the meaning of Sections 6011, 6111 or 6112 of section 43 VATA (the Code “VAT Group”) and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) not been for VAT purposes treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or member of any group of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) companies other than as described the VAT Group and no act or transaction has occurred in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)consequence whereof Connect Holdings or Connect is or may be held liable for any VAT arising from supplies made by another company.
(i) Except 16.18 So far as set forth in Section 6.7(i) the Vendor is aware, the representative member of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, VAT Group has complied in all material respectsrespects with all statutory provisions, the information concerning any limitations on the ability rules, regulations, orders and directions in respect of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerVAT.
(k) Any liabilities of Clearwire, with the possible exception 16.19 The Tax Disclosure Letter sets out full details of any indebtedness issued assets of the Company, Connect Holdings and Connect which, in the case of the Company, and so far as the Vendor is aware in the case of Connect Holdings or Connect are capital items subject to the Capital Goods Scheme under Part XV of the VAT Regulations 1995.
16.20 All documents (other than those which have ceased to have any legal effect) by Clearwire between virtue of which the Execution Date Company has any right have been duly stamped.
16.21 The Company and, so far as the Vendor is aware, Connect Holdings and the Closing in accordance with Sections 10.1(b)(iv)(F) Connect has not claimed any relief or 10.1(b)(iv)(H) exemption from stamp duty land tax or sought any deferral of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)stamp duty land tax.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Macquarie Infrastructure CO LLC), Sale and Purchase Agreement (Macquarie Infrastructure CO LLC)
Tax. (a) None CMI has timely filed, or caused to be filed, all Tax Returns required to be filed by it (all of which returns were correct and complete in all material respects), has timely paid, or caused to be paid, all Taxes due and payable by either of them, and has satisfied in full in all respects all Tax withholding, deposit and remittance requirements imposed on or with respect to CMI, and CMI’s consolidated financial statements for the fiscal period ending December 31, 2008 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 such financial statements to the extent such Taxes have not been paid, whether or not due and whether or not shown as being due on any Tax Returns. CMI has made adequate provision in accordance with Canadian generally accepted accounting principles in its books and records for any amount of Taxes material to CMI and accruing in respect of any accounting period ending subsequent to the period covered by such financial statements.
(b) Except as disclosed in writing to Genterra:
(i) CMI has not received any written notification that any issue involving an amount of Taxes has been raised (and is currently pending) by the Canada Customs and Revenue Agency, the United States Internal Revenue Service or any other taxing authority, including any sales tax authority, and no waivers of statutes of limitations or objections to any assessments or reassessments involving an amount of Taxes have been given, filed or requested with respect to CMI;
(ii) CMI has not received any notice from any taxing authority to the effect that any Tax Return is being examined, and CMI has no knowledge of any Tax audit or issue;
(iii) There are no proposed (but unassessed) additional Taxes applicable by CMI and none has been asserted against CMI;
(iv) There are no Tax liens on, or statutory trusts in respect of, any assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, CMI except for liens for Taxes not yet due and payable.; and
(bv) All material Tax Returns required CMI has not received a refund of any Taxes to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respectswhich it was not entitled.
(c) All material Taxes owed by Clearwire CMI has withheld from each payment made to any present or former employees, officers, consultants and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except directors and to all persons who are non-residents of Canada for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date purposes of the most recent balance sheet included in Tax Act all amounts required by Law and have remitted such withheld amounts within the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over prescribed periods to the relevant Taxing Authorities appropriate federal or provincial taxing authority. CMI has remitted all Canada Pension Plan contributions, Employment Insurance premiums, Employer Health Taxes and other Taxes payable by it and has or will have remitted such amounts to the proper taxing authority within the time required by applicable Law. CMI charged, collected and remitted on a timely basis all Taxes required to have been withheld and paid in connection with payments to employeesby applicable Law (including, independent contractorswithout limitation, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 Part IX of the Code and Excise Tax Act (Canada) or the Treasury Regulations thereunder or has received a written opinion from a retail sales tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception legislation of any indebtedness issued province of Canada) on any sale, supply or delivery whatsoever, made by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)CMI.
Appears in 2 contracts
Samples: Amalgamation Agreement (Genterra Inc), Amalgamation Agreement (Genterra Inc)
Tax. (a) None of the assets of Clearwire Pharmadrug has timely filed, or any of its Subsidiaries is subject caused to any material Encumbrance for Taxesbe filed, except for liens for Taxes not yet due and payable.
(b) All all material Tax Returns required to be filed by Clearwire or any it (all of its Subsidiaries have been timely filed, and all those Tax Returns are true, which returns were correct and complete in all material respects), has timely paid, or caused to be paid, all Taxes due and payable by it, and has satisfied in full in all respects all Tax withholding, deposit and remittance requirements imposed on or with respect to Pharmadrug, and Pharmadrug's financial statements for the fiscal period ended December 31, 2019 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 such financial statements to the extent such Taxes have not been paid, whether or not due and whether or not shown as being due on any Tax Return. Pharmadrug has made adequate provision in accordance with International Financial Reporting Standards in its books and records for any amount of Taxes material to Pharmadrug and accruing in respect of any accounting period ending subsequent to the period covered by such financial statements.
(b) Pharmadrug has not received any written notification that any issue involving an amount of Taxes has been raised (and is currently pending) by the Canada Revenue Agency, or any other taxing authority, including any sales tax authority, and no waivers of statutes of limitations or objections to any assessments or reassessments involving an amount of Taxes have been given, filed or requested with respect to Pharmadrug. Pharmadrug has not received any notice from any taxing authority to the effect that any Tax Return is being examined, and Pharmadrug has no knowledge or notice of any contemplated Tax audit. There are no proposed (but unassessed) additional Taxes applicable to Pharmadrug and none has been asserted against Pharmadrug. There are no Tax liens on, or statutory trusts in respect of, any assets of Pharmadrug except for Taxes not yet due and payable. Pharmadrug has not received a refund of any Taxes to which it was not entitled.
(c) All material Pharmadrug has withheld from each payment made to any present or former employees, officers, consultants and directors and to all persons who are non-residents of Canada for the purposes of the Tax Act all amounts required by applicable Laws and have remitted such withheld amounts within the prescribed periods to the appropriate federal or provincial taxing authority. Pharmadrug has remitted all Canada Pension Plan contributions, Employment Insurance premiums and other Taxes owed payable by Clearwire it and its Subsidiaries has or will have remitted such amounts to the proper taxing authority within the time required by applicable Laws. Pharmadrug charged, collected and remitted on a timely basis all Taxes required by applicable Laws (whether including, without limitation, Part IX of the Excise Tax Act (Canada) or not shown the retail sales tax legislation of any province of Canada) on any Tax Return) have been paidsale, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions supply or transactions following the Execution Date permitted delivery whatsoever, made by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessPharmadrug.
(d) Except as disclosed in Section 6.7(d) Pharmadrug is a "taxable Canadian corporation" for the purposes of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesAct.
(e) Clearwire has no Knowledge If requested, Pharmadrug will furnish to Pharmadrug true and complete copies of any proposed or threatened Tax claims or assessments with respect to Clearwire or any all of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire federal and each of its Subsidiaries have withheld provincial income Tax Returns and paid over Tax Returns filed by it pursuant to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
Excise Tax Act (g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hCanada).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 2 contracts
Samples: Amalgamation Agreement, Amalgamation Agreement
Tax. (a) None The Net SP Lloyd’x Xxxxxxx is exclusive of any Tax and any Tax due in respect of the assets Net SP Lloyd’x Xxxxxxx shall be borne by the Retrocedent, other than Tax that is imposed on or calculated by reference to the net income of Clearwire or any of the Retrocessionaire and/or its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payableAffiliates.
(b) All material The Retrocedent shall pay any Federal Excise Tax Returns required applicable to be filed any premium payable hereunder and shall not reduce any such premium by Clearwire or the amount of any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respectssuch Federal Excise Tax.
(c) All material Taxes owed by Clearwire The Retrocedent and its Subsidiaries (whether or not shown on any Tax Return) have been paidthe Retrocessionaire acknowledge and agree that, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result at the date of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor the Retrocedent is not required by Applicable Law to make a Tax Deduction from a payment under Section 3.5. If, subsequently, the Retrocedent reasonably determines that it is required by Applicable Law to make or should previously have made such a Tax Deduction, it shall promptly notify and consult with the Retrocessionaire and take account of any of its Subsidiaries has incurred any liability (whether reasonable views or not due) for material Taxes since proposed actions that the date of Retrocessionaire communicates to the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessRetrocedent.
(d) Except as disclosed in If, acting reasonably, the Retrocedent continues to consider that it is required by Applicable Law to make a Tax Deduction from a forthcoming payment under Section 6.7(d) 3.5 or that it should have made such a Tax Deduction from a previous payment under that section, it shall promptly notify the Retrocessionaire of that determination and the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes following provisions of Clearwire or any of its Subsidiaries. Except as disclosed in this Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes3.3 shall then apply.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with With respect to Clearwire or any of its Subsidiaries thatfuture payment under Section 3.5, if upheld, would, individually or the Retrocedent shall:
(i) make the Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the aggregate, minimum amount required by Applicable Law;
(ii) deliver to the Retrocessionaire evidence reasonably be expected satisfactory to have a Clearwire Material Adverse Effectthe Retrocessionaire that the Tax Deduction has been made or (as applicable) any appropriate payment has been made to the relevant Tax authority; and
(iii) pay an amount equal to fifty percent (50%) of the Tax Deduction to the Retrocessionaire at the same time as it makes the relevant payment under Section 3.5.
(f) Except as disclosed in With respect to any relevant past payment under Section 6.7(f3.5, the Retrocessionaire shall promptly pay to the Retrocedent, on an after-Tax basis, fifty percent (50%) of the Clearwire Disclosure Schedule, Clearwire and each amount of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to any Tax Deduction that should have been withheld made from the past payment (including any related liability for interest and paid in connection with payments penalties, which the Retrocedent shall use its reasonable endeavours to employees, independent contractors, creditors, shareholders or other third partiesmitigate). Retrocedent shall be responsible for paying the full amount of any Tax Deduction that should have been made from that past payment (including any related liability for interest and penalties).
(g) Neither Clearwire nor With respect to any Tax Refund or Saving that the Retrocedent or Retrocessionaire obtains as a result of its Subsidiaries has entered into, the Retrocedent making the Tax Deduction that is referred to in paragraphs (e) or otherwise participated (directly or indirectlyf) in, any “listed transaction”, or any reportable transaction payment required in connection with that Tax Deduction, the principal purpose Retrocedent or Retrocessionaire, as the case may be, shall share fifty percent (50%) of which was tax avoidance, within that Tax Refund or Saving with the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyother Party.
(h) Except The Retrocedent and the Retrocessionaire shall, including as set forth in Section 6.7(h) part of the Clearwire Disclosure Scheduleconsultation referred to in paragraph (c) above, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its ownerwhere appropriate, for U.S. federal income tax purposes. No action has been taken by Clearwire or take all reasonable steps to mitigate any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not circumstances that would result in the recognition by NewCo or any application of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder paragraph (or any comparable provision under state or local income Tax lawe) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)above.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Loss Portfolio Transfer Reinsurance Agreement (SiriusPoint LTD)
Tax. Any and all payments to any Secured Party by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all Taxes excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxes or other Tax based on gross income imposed by the United States of America (all such Taxes, other than those Taxes described in clauses (i) and (ii) of this Section 3.1.2(a), the "Covered Taxes"). If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules. If the Borrower shall make any payment with respect to Covered Taxes under this clause (a) None to or for the benefit of the assets of Clearwire any Secured Party and if such Secured Party shall claim any credit or deduction for such Covered Taxes against any of its Subsidiaries is subject to any material Encumbrance for other Taxes payable by such Secured Party that are not Covered Taxes, except for liens for then such Secured Party shall pay to the Borrower an amount equal to the amount such Secured Party determines, absent manifest error, is the amount by which such other Taxes are actually reduced; provided that the aggregate amount payable by such Secured Party pursuant to this sentence shall not yet due and payable.
(b) All material Tax Returns required to be filed exceed the aggregate amount previously paid by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Borrower with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material such Covered Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of the assets of Clearwire Each Group Company has complied with all its duties under all Tax legislation, kept made or any of its Subsidiaries is subject to any material Encumbrance for Taxesfiled with all appropriate Tax Authorities all Tax returns, except for liens for Taxes not yet due disclosures, notices and payable.
(b) All material Tax Returns reports required to be filed or made by Clearwire applicable law on or any of its Subsidiaries have been timely filedbefore the date hereof and supplied all other information required by law to be supplied to all relevant Tax Authorities, and all those such information, Tax Returns are truereturns, correct notices and disclosures were submitted within applicable time limits and were accurate and complete in all material respects.
(b) Each Group Company has duly paid within the applicable time limits all Tax to the extent that the same ought to have been paid and no Group Company is liable, nor has it been liable, to pay any fine, surcharge, penalty or interest in connection with the payment of Tax.
(c) All None of the Group Companies is, so far as the Sellers are aware, the subject of any dispute, material Taxes owed investigation or proceeding with or by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paidAuthority and there are no facts or circumstances likely to give rise to or be the subject of any such dispute, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwirematerial investigation or proceeding. No Group Company has received any written notice of any Tax Authority’s Financial Statements. Except for Taxes that may arise solely as result of actions intent to conduct an investigation, visit, enquiry or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessaudit.
(d) Except as disclosed in Section 6.7(d) Each Group Company has within applicable time limits duly submitted all claims, disclaimers, elections, surrenders and applications which have been assumed to have been made for the purposes of the Clearwire 2013 Audited Accounts. Details of such claims, disclaimers, elections, surrenders and applications are set out in the Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesDocuments.
(e) Clearwire has no Knowledge The 2013 Audited Accounts, as at the Accounts Date, make full provision or reserve in respect of any proposed period ended on or threatened before the Accounts Date for all Tax claims assessed or assessments with respect liable to Clearwire be assessed on each Group Company or for which it is accountable at the Accounts Date whether or not it has or may have any right of its Subsidiaries thatreimbursement against any other person, if upheld, would, individually or and proper provision has been made and shown in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect2013 Audited Accounts as at the Accounts Date for deferred Tax in accordance with the relevant generally accepted accounting principles.
(f) Except as disclosed No Taxation Authority has agreed with any Group Company to operate any special arrangement (being an arrangement which is not based on relevant legislation or any published practice) in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over relation to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesaffairs of any Group Company.
(g) Neither Clearwire nor Each Group Company has, on or before the relevant due date, complied with its obligations to deduct, withhold or retain amounts of or on account of Tax from any of payments made by it and to account for such amounts to the relevant Tax Authority and has complied with all its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction reporting obligations to the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyrelevant Tax Authority.
(h) Except as set forth Each Group Company is and has at all times been resident for Tax purposes in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire jurisdiction in which it was incorporated and no Group Company is either (x) nor has at any time been treated as a partnership or resident in any other jurisdiction for any Tax purpose (y) disregarded as an entity separate from its owner, including for U.S. federal income the purpose of any double tax purposestreaty). No action Group Company is, nor has been taken by Clearwire or it ever been, subject to Tax in any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) jurisdiction other than as described its place of incorporation by virtue of having a permanent establishment or other place of business in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)that jurisdiction.
(i) Except All transactions entered into by a Group Company have been entered into on an arm’s length basis. No notice or enquiry by any Tax Authority has been made in connection with the arm’s length nature of any transaction entered into by any Group Company.
(j) No Group Company will become liable to pay any Tax as set forth a result of Completion.
(k) No transaction, act, omission or event has occurred in Section 6.7(i) consequence of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or which any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) Group Company is or, so far as the Sellers are aware, may be held liable for any Tax or may otherwise be held liable for or to indemnify any person in respect of Tax which is primarily or directly chargeable against or attributable to any person other than the Knowledge Group Company.
(l) No Group Company is, nor has it ever been, a member of Clearwirea group, fiscal unity or similar entity or association for any other material items Tax purpose.
(m) Each Group Company has complied in all respects with the terms of income or Tax applicable Laws in respect of VAT (“Clearwire Transaction Tax Items”). For including, for the avoidance of doubt, Clearwire Transaction Tax Items shall not include applicable registration requirements in any items jurisdiction) and the Disclosure Documents contain full details of income any VAT registrations of the Group Companies. No any Group Company is an agent or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)fiscal representative for VAT Purposes.
(jn) Section 6.7(j) of the Clearwire Disclosure sets forthAll documents which any Group Company needs in order to provide title to any asset have been duly stamped and all applicable stamp duty, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerinterest and penalties have been duly paid.
(ko) Any liabilities The Sellers’ representations and warranties set forth in this subsection 16 are the only representations and warranties given in respect of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax.
Appears in 1 contract
Tax. (a) None 11.1 The Sellers and the Purchaser shall, with effect from Closing, comply with the provisions of the assets Tax Covenant
11.2 All sums payable under this agreement shall be paid free and clear of Clearwire all deductions or withholdings whatsoever save only as provided in this agreement or as may be required by law.
11.3 If any deduction or withholding is required by law from any payment in respect of its Subsidiaries is subject a Purchaser Obligation or a Seller Obligation then, except in relation to interest, the person making the payment shall be obliged to pay the other person such additional sum as will, after such deduction or withholding has been made, leave the other person with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
11.4 If any tax authority brings into charge to tax any sum paid by a person to any material Encumbrance for Taxesother person under this agreement in respect of a Purchaser Obligation or a Seller Obligation, then, except for liens for Taxes in relation to interest, the amount so payable shall be grossed up by such amount as will ensure that, after payment of the tax so charged, there will be left a sum equal to the amount that would otherwise have been payable had the sum in question not yet due and payablebeen so charged to tax.
11.5 If any person receiving payment (ba Recipient) All material Tax Returns required under this agreement in respect of a Purchaser Obligation or a Seller Obligation receives a credit for, refund of or relief from any tax or other monies payable by it or similar benefit by reason of any deduction or withholding for or on account of tax or by reason of any tax charged in respect of which there is a gross up under clause 11.4, then it shall reimburse to be filed the other relevant persons such part of such additional payments paid to it pursuant to clause 11.3 or clause 11.4 by Clearwire such other persons as the Recipient, acting reasonably, certifies to the other persons will leave it (after such reimbursement) in no better or any of its Subsidiaries worse position than it would have been timely filed, and all those Tax Returns are true, correct and complete in all material respectsif no deduction or withholding had been required or no tax charge had arisen or (where applicable) if the matter giving rise to the payment had not arisen.
11.6 If any party shall have assigned the benefit in whole or in part of this agreement in accordance with the provisions of clause 21, the liability of any other person to the other person under clauses 11.3 and 11.4 shall be limited to that (cif any) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) which it would have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businesshad no such assignment taken place.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). 11.7 For the avoidance of doubt, Clearwire Transaction Tax Items clauses 11.3 to 11.6 shall not include apply to the Final Price for any items Set of income or gain of Sprint Shares, any Financial Adjustments or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)payment pursuant to clause 7.
11.8 All sums payable under this agreement are (junless expressly stated otherwise) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception exclusive of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)applicable VAT.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Business (Harsco Corp)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any on behalf of its Subsidiaries the Sellers have been duly filed on a timely basis and such Tax Returns were, when filed, and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) . All material Taxes owed shown to be payable on such Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are due and payable by Clearwire and its Subsidiaries the Sellers with respect to items or periods covered by such Tax Returns (whether or not shown on such Tax Returns). The Sellers have withheld and paid over all Taxes required to have been withheld and paid over, and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens on any of the Purchased Assets with respect to Taxes, other than Permitted Liens. Neither the Sellers nor the Guarantor have been at any time a member of an affiliated group of corporations filing consolidated, combined or unitary income or franchise tax returns other than as a member of a group of which either Seller or the Guarantor is the ultimate parent for a period for which the statute of limitations for any Tax Returnpotentially applicable as a result of such membership has not expired.
(b) have been paidThe amount of the Sellers’ liabilities for unpaid Taxes for all periods through October 31, except 2009 does not, in the aggregate, exceed the amount of the liability accruals for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s reflected on the Sellers’ Financial Statements. Except , and the Sellers’ Financial Statements properly accrue in accordance with GAAP all liabilities for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in Sellers payable after October 31, 2009 attributable to transactions and events occurring prior to such date. No liability for Taxes of the Clearwire Financial Statements Sellers has been incurred or material amount of taxable income has been realized (or prior to and including the Closing Date will be incurred or realized) after October 31, 2009 other than in the ordinary course of business.
(dc) Except as disclosed in Section 6.7(d) No audit of the Clearwire Disclosure ScheduleTax Returns of or including the Sellers by a government or taxing authority is in process, there is no currently pending audit threatened or, to the Sellers’ Knowledge, pending. No deficiencies exist or administrative or judicial proceeding have been asserted in writing with respect to Taxes of Clearwire the Sellers, and the Sellers have not received written notice that either Seller has not filed a Tax Return or paid Taxes required to be filed or paid. The Sellers are not a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened in writing against the Sellers or any of its Subsidiariestheir assets. Except as disclosed No waiver or extension of any statute of limitations is in effect with respect to Tax Returns or material Taxes of the Sellers.
(d) The Sellers are not (nor has it ever been) a party to any tax sharing agreement. Since inception, the Sellers have not been a distributing corporation or a controlled corporation in a transaction described in Section 6.7(d355(a) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesCode.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in No Purchased Asset being sold by the aggregate, reasonably be expected to have Canadian Seller is a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, United States real property interest” within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h897(c) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Code.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Asset Purchase Agreement (Take Two Interactive Software Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(dset forth on Schedule 4.2(l) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldwould not, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
Effect on the Prudential Contributed Business, (fi) Except as disclosed the Prudential Contributed Subsidiaries and the other Subsidiaries of Prudential with respect to the Prudential Contributed Business have timely filed (or Prudential has timely filed on their behalf) with the appropriate taxing authorities all Tax Returns required to be filed by or with respect to the Prudential Contributed Business, (ii) the Prudential Contributed Subsidiaries and the other Subsidiaries of Prudential with respect to the Prudential Contributed Business have paid in Section 6.7(ffull (or Prudential has paid in full on their behalf) all Taxes due by or in respect of the Clearwire Disclosure SchedulePrudential Contributed Business for all periods, Clearwire (iii) each Prudential Contributed Subsidiary and each other Subsidiary of its Subsidiaries have withheld and paid over Prudential with respect to the relevant Taxing Authorities Prudential Contributed Business has duly and timely withheld all Taxes required to have been be withheld and paid in connection with payments its business or assets, and such withheld Taxes have been either duly and timely paid to employeesthe proper Governmental Authorities or properly set aside in accounts for such purpose, independent contractors, creditors, shareholders (iv) there are no material outstanding adjustments for Tax purposes applicable to any Prudential Contributed Subsidiary or other third parties.
Subsidiary of Prudential with respect to the Prudential Contributed Business and required as a result of changes in methods of accounting effected on or before the Closing Date, which adjustments will remain in force or by which any Prudential Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (gv) Neither Clearwire nor no material elections for Tax purposes have been made by any Prudential Contributed Subsidiary or other Subsidiary of Prudential with respect to the Prudential Contributed Business that will remain in force or by which any Prudential Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (vi) no Prudential Contributed Subsidiary is a party to or bound by or has any rights or obligations under any Tax allocation, sharing, indemnity or similar agreement or arrangement that will remain in effect after the Closing Date, and (vii) no Prudential Contributed Subsidiary is or has been a member of any group of companies filing a consolidated, combined or unitary Tax Return for any Tax period for which the statute of limitations for the assessment or collection of any Tax remains open, other than a group of which Prudential or one of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction at all times been the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltycommon parent.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Retail Brokerage Company Formation Agreement (Prudential Financial Inc)
Tax. (a) None 13.1 The Seller and the Purchaser shall, with effect from Closing, comply with the provisions of Schedule 8.
13.2 All sums payable under this Agreement shall be paid free and clear of all deductions or withholdings whatsoever save only as provided in this Agreement or as may be required by law.
13.3 If any deduction or withholding is required by law from any payment in respect of a Purchaser Obligation or a Seller Obligation then, except in relation to interest, the person making the payment shall be obliged to pay the other person such additional sum as will, after such deduction or withholding has been made, leave the other person with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
13.4 If any Tax authority brings into charge to Tax any sum paid by a person to any other person under this Agreement in respect of a Purchaser Obligation or a Seller Obligation, then, except in relation to interest, the amount so payable shall be grossed up by such amount as will ensure that, after payment of the assets of Clearwire or any of its Subsidiaries is subject Tax so charged, there will be left a sum equal to any material Encumbrance for Taxes, except for liens for Taxes the amount that would otherwise have been payable had the sum in question not yet due and payablebeen so charged to Tax.
13.5 If any person receiving payment (bRECIPIENT) All material under this Agreement in respect of a Purchaser Obligation or a Seller Obligation receives a credit for, refund of or relief from any Tax Returns required or other monies payable by it or similar benefit by reason of any deduction or withholding for or on account of Tax or by reason of any Tax charged in respect of which there is a gross up under Clause 13.4, then it shall reimburse to be filed the other relevant persons such part of such additional payments paid to it pursuant to Clause 13.3 or Clause 13.4 by Clearwire such other persons as the Recipient, acting reasonably, certifies to the other persons will leave it (after such reimbursement) in no better or any of its Subsidiaries worse position than it would have been timely filed, and all those Tax Returns are true, correct and complete in all material respectsif no deduction or withholding had been required or no tax charge had arisen or (where applicable) if the matter giving rise to the payment had not arisen.
13.6 In determining the amount payable in respect of any Purchaser Obligation or Seller Obligation (c) All material Taxes owed by Clearwire and its Subsidiaries (whether other than the amount of a payment under the Tax Covenant or not shown on for breach of any Tax Return) have been paidWarranty), except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge account shall be taken of any proposed relief or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over other benefit available to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire Recipient or any of its Affiliates in respect of the matter giving rise to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than the payment, insofar as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)not taken into account pursuant to Clause 13.5 above.
(i) Except as set forth 13.7 If any Party shall have assigned the benefit in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 whole or in part of this Agreement will in accordance with the provisions of Clause 21, the liability of any other person to the other person under Clauses 13.3 and 13.4 shall be limited to that (if any) which it would have been had no such assignment taken place.
13.8 Clauses 13.3 and 13.4 shall not result apply to the extent that the deduction or withholding or Tax would not have arisen but for:
(a) the Recipient not being tax resident in the recognition UK, or having some connection with a territory of the UK; or
(b) a change in law after Closing; or
(c) an assignment by NewCo or the Recipient of any of its Subsidiaries of income or gain rights under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). this Agreement.
13.9 For the avoidance of doubt, Clearwire Transaction Tax Items Clauses 13.3 to 13.6 shall not include apply to any items payment in respect of income or gain of Sprint the Consideration or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)payment pursuant to Clause 2.
13.10 All sums payable under this Agreement are (junless expressly stated otherwise) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception exclusive of any indebtedness issued applicable VAT chargeable on any supply to which such sums relate and an amount equal to such VAT shall in each case be paid by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) party making such payment on receipt of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)an appropriate VAT invoice.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Encana (u.k.) Limited (Nexen Inc)
Tax. (a) None of 10.1 The Seller shall indemnify the assets of Clearwire Buyer and the Company from and against all Tax liabilities
10.1.1 all unpaid Taxes which were or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due are levied against the Company and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns which are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over attributable to the relevant Taxing Authorities all Taxes required period up to have been withheld and paid in connection with payments including the Closing Date, 24:00 hours, on the basis of a pro forma tax assessment (hereinafter referred to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any as “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax ItemsPeriod”). For the avoidance of doubt: This indemnification shall also apply if the Tax Authorities challenged the fiscal unities for corporate income tax, Clearwire Transaction trade tax and VAT purposes which would lead to a tax burden on the level of the Company;
10.1.2 any liability of the Company for any Tax Items shall not include any items debt of income or gain of Sprint the Seller or any of its Subsidiaries (including Seller’s Affiliate(s) other than the Company;
10.1.3 any income damages, expenses or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) costs of the Clearwire Disclosure sets forth, in all material respects, Company or the information concerning any limitations on the ability Buyer arising as a result of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing facts which form a claim in accordance with Sections 10.1(b)(iv)(F) 10.1.1 and 10.1.2.
10.2 The indemnification under this clause 10 shall be excluded if and to the extent that the Tax liabilities:
10.2.1 have been duly and fully paid, before the Effective Date, to the competent Tax Authority;
10.2.2 have been duly and fully provided for in the Reference Date Accounts as Tax liability or 10.1(b)(iv)(H) as Tax provision;
10.2.3 have been duly and fully reflected in the Closing Statement and have been taken into account in adjusting the Purchase Price;
10.2.4 result from the Buyer causing or allowing the Company to change its methods of Tax accounting or other measures of the Buyer, e.g. by exercising tax election rights introduced after the Effective Date, unless required by law;
10.2.5 result from the Company entering into any reorganization or performing any other act after the Effective Date that has retroactive effect under Tax law to the Tax Period;
10.2.6 result from any Contest in which the Buyer has breached any of its obligations under this AgreementAgreement except to the extent such breach did not cause such Tax liability; or
10.2.7 are covered by a realized claim of the Company and/or the Buyer for reimbursement, deemed repayment or indemnification against any third party for U.S. federal income tax purposes such Tax liabilities.
10.3 If the Company is entitled to any Tax benefit resulting from a circumstance giving rise to a Tax indemnification under this Section 10, e.g. from the extension of any amortization or depreciation period, higher depreciation allowances or deductions of benefits by refund, set-off or reduction of Taxes, the Tax benefit shall reduce the Tax liability to be assumed indemnified by NewCo LLC the Seller unless reflected in connection with the transactions described Closing Statement and taken into account in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)adjusting the Purchase Price.
Appears in 1 contract
Samples: Sale and Transfer of Shares Agreement (Cascade Microtech Inc)
Tax. Seller shall provide to Purchaser no later than on the Closing Date the following information as of the Closing Date:
(a) None a true and complete list of all audits, examinations, actions, suits, proceedings, verifications, investigations or inspections by any Tax Authority against the Seller Parties relating to the assessment or collection of Taxes that relate to the Business or the Companies since January 1, 2010;
(b) complete copies of any adjustments relating to Taxes of or with respect to the Business or any Company made in writing by any Tax Authority in any completed audit or examination which, by application of the assets result of Clearwire such adjustment, could reasonably be expected to result in a material Tax liability for any post-Closing period;
(c) complete copies of any written rulings of a Tax Authority relating to Taxes and any written agreements with a Tax Authority which could reasonably be expected to result in a material Tax liability of Purchaser or its Affiliates (including the Companies) for any post-Closing period;
(d) a true and complete list of any accounting method changes under applicable Tax Law to which a Seller Party or Company is subject, or for which a Seller Party or Company has an application pending with any Tax Authority, that could give rise to an adjustment to Taxes with respect to the Business or any Company for periods after December 31, 2013;
(e) complete copies of any Tax indemnity, Tax allocation or Tax sharing agreement of the Business to which Purchaser or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.Affiliates (including the Companies) will be exposed after Closing;
(bf) All material Tax Returns a true and complete list of any items of income required to be filed included by Clearwire or any of its Subsidiaries have been timely filedthe Companies in, and all those Tax Returns are trueany items of deduction required to be excluded by the Companies from, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on taxable income for any Tax Returnperiod (or portion thereof) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely ending after the Closing Date as a result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party installment sale or open transaction disposition made on or prior to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any personthe Closing Date, or (ii) has entered into any waivers prepaid amount received on or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over prior to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.Closing Date;
(g) Neither Clearwire nor a true and complete list of powers of attorney that have been granted to any of its Subsidiaries has entered into, Person by or otherwise participated with respect to any Seller Party (directly with respect to the Business) or indirectly) in, Company with respect to any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended matter relating to provide protection against a tax penalty.Taxes; and
(h) Except as set forth true and complete copies of all Tax Returns for the Companies and all other material Tax Returns filed in Section 6.7(h) respect of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership Business or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) on behalf of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder Seller Parties (or any comparable provision under state or local income Tax law) or, with respect to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(FBusiness) or 10.1(b)(iv)(H) of this AgreementCompanies for all periods ending on or after December 31, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)2010.
Appears in 1 contract
Tax. 16.1 All registrations, returns, computations and notices which are or have been required to be made or given by each Group Company for any Tax purpose—
(a) None of have been made or given within the assets of Clearwire or any of its Subsidiaries is subject to any requisite periods and on a proper basis and are up-to-date and correct in all material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.respects;
(b) All material are not, or are not expected to be, the subject of any dispute with any Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.Authority; and
(c) All material Taxes owed by Clearwire all Tax shown as due on such returns has been paid.
16.2 Each Group Company is in possession of sufficient information or has reasonable access to such information to enable it to compute its present and its Subsidiaries (whether or not shown future liability to Tax in so far as it depends on any transaction occurring on or before Completion and has retained under its control or in its possession all records and documents which it is required by the law of any country to retain for tax purposes.
16.3 Each Group Company has complied with all statutory provisions relating to Tax Return) which require the deduction of Tax from any payment made by it, and has accounted for any such Tax which ought to have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessaccounted for.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule16.4 Each Group Company has complied with all material statutory provisions relating to VAT or other applicable sales taxes, there is no currently pending audit or administrative or judicial proceeding including requirements with respect to Taxes record keeping and the making of Clearwire or returns, and has properly accounted for any such VAT.
16.5 Each Group Company—
(a) is separately registered for VAT in every jurisdiction in which it operates and has never been treated as part of a group of companies for VAT purposes in any jurisdiction;
(b) is able to recover all material amounts of its Subsidiaries. Except as disclosed VAT input tax in Section 6.7(dwhichever jurisdiction it is incurred; and
(c) does not own any asset and has not incurred any expense in respect of which Part XV of the Clearwire UK VAT Regulations (Capital Goods Scheme) or its equivalents in any other jurisdiction applies.
16.6 The Disclosure ScheduleLetter contains all material particulars of any election to waive the exemption from VAT made or agreed to be made under schedule 10 to the Value Added Tax Act 1994 (or equivalent election under the law of any other relevant jurisdiction) by—
(a) any Group Company; or
(b) any person whose election (by reason of a close connection with the Group Company in question) is binding upon any Group Company under the law of the relevant jurisdiction as though it had been made by the Group Company itself, neither Clearwire nor in respect of any property in which the Company has an interest and no event has occurred as a result of its Subsidiaries which any such election is and may cease to be valid and effective.
16.7 So far as the Vendor is aware, all documents (iother than those which have ceased to have any legal effect) to which any Group Company is a party and which are material to or bound by the business of such Group Company have been duly stamped where required and any material closing agreement, offer stamp registration and transfer duties which are due in compromise, gain recognition agreement or any other agreement relation to such documents have been duly paid and no such document retained in a particular jurisdiction would attract duty if brought into another jurisdiction.
16.8 The level of deferred tax provision (if any) in the Accounts is consistent with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) UK GAAP.
16.9 No Group Company has entered into any waivers or extensions arrangements whereby any Member of the statute Group obtains the benefit of limitations with any losses or other tax relief arising in another company in respect of which any payment remains due or outstanding, or where the effectiveness of such arrangements is likely to material Taxesbe challenged by any Tax Authority.
(e) Clearwire has 16.10 So far as the Vendor is aware, no Knowledge of Group Company is involved in any proposed or threatened dispute with any Tax claims or assessments with respect to Clearwire or Authority concerning any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be matter expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed affect the business of such Group Company in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire any material way and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidanceno Group Company has, within the meaning of Sections 6011previous three years, 6111 been subject to any non-routine audit or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyinvestigation by any Tax Authority.
(h) Except as set forth 16.11 Each Group Company has at all times since incorporation been exclusively resident for tax purposes in Section 6.7(h) its country of incorporation or organisation according to the Clearwire Disclosure Schedulelaws of such country, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)will be so resident at Completion.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 16.12 The entry into or Completion of this Agreement will not result in any charge to Tax accruing to any Group Company as a result of that Group Company having previously acquired any asset from another company which was at the recognition time of that acquisition a member of the same group for any Tax purpose.
16.13 None of the Assets which are owned by NewCo any Group Company are the subject of any charge, power of sale or mortgage in favour of any Tax Authority.
16.14 The Disclosure Letter contains all material details of every—
(a) claim, election or disclaimer taken into account for the purposes of the Accounts or return required to be made by the Company and in each case the time limit for making of which will not have expired on or before Completion; and
(b) subsisting formal or informal arrangement or agreement entered into by the Company with any Tax Authority with regard to any of its Subsidiaries of income or gain under Section 1502 Tax affairs. 51 PART 4—INTELLECTUAL PROPERTY
17.1 Trade marks material to the business of the Code Group are listed in Part 1 of Schedule 4.
17.2 Save in respect of any Intellectual Property which is the subject of an IT Contract or Intra-Group Trade Xxxx Licences which have been granted to the Vendor or one of the Group Companies, a Group Company is the sole legal and beneficial owner of all Intellectual Property (including the Regulations thereunder (subject matter thereof) free from all liens, charges, equities, encumbrances, licences and adverse rights of any description.
17.3 As far as the Vendor is aware, none of the Intellectual Property is subject to any challenge or attack by a third party or competent authority.
17.4 So far as the Vendor is aware, no Group Company or any comparable provision under state or local income Tax law) or, to the Knowledge other party is in material breach of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Intra-Group Trade Xxxx Licence.
(j) Section 6.7(j) of 17.5 No Group Company has been, within the Clearwire Disclosure sets forth, in all material respects, six years preceding the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) date of this Agreement, deemed party to any legal proceedings relating to any Intellectual Property.
17.6 There are no outstanding or potential claims against any Group Company under any contract or under section 40 of the Patents Xxx 0000 for U.S. federal income tax purposes employee compensation in respect of any Intellectual Property.
17.7 So far as the Vendor is aware, the carrying on of the Group Company's business or businesses as presently constituted does not require, and has not at any time required, any licences or consents or the making of royalty or similar payments by any Group Company to be assumed any third party relating to intellectual property.
17.8 So far as the Vendor is aware, no Group Company's activities infringe any intellectual property rights belonging to or vested in any third party.
17.9 Insofar as Intellectual Property is not owned by NewCo LLC a Group Company, its use is licensed to the relevant Group Company under the Intra-Group Trade Xxxx Licences or its benefit is received pursuant to the Management Services Agreement and/or the IT Contracts.
17.10 The Intellectual Property, the IT Contracts, and the rights granted to the Group under the Management Services Agreement comprise all material intellectual property required by the Group for its business or businesses as presently constituted.
17.11 Sea Containers Services Limited is the registered proprietor of the "XxxXxx" and "SuperSeaCat" trade marks and is the owner of the goodwill in connection with those trade marks acquired through the transactions described use of those trade marks in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)the business carried on by the Group.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Sea Containers LTD /Ny/)
Tax. (a) None Each member of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Rio Alto Group has duly and payable.
(b) All material timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Each member of the Rio Alto Group has paid on a timely basis all Taxes owed which are due and payable, all assessments and reassessments, and all other Taxes due and payable by Clearwire and its Subsidiaries (whether them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Rio Alto. Except Rio Alto and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Rio Alto for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Rio Alto and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire any member of the Rio Alto Group, and no member of the Rio Alto Group is a party to any action or proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Rio Alto, threatened against Rio Alto or any of its Subsidiaries. Except as disclosed Subsidiaries or affiliates or any of their respective assets.
(d) No Claim has been made by any Governmental Entity in Section 6.7(da jurisdiction where Rio Alto or any of its Subsidiaries or affiliates does not file Tax Returns that Rio Alto or any of its Subsidiaries or affiliates is or may be subject to Tax by that jurisdiction.
(e) There are no Encumbrances (other than Permitted Encumbrances) with respect to Taxes upon any of the Clearwire Disclosure Scheduleassets of Rio Alto or any of its Subsidiaries or affiliates.
(f) Rio Alto and each of its Subsidiaries and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so.
(g) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any Claim for, neither Clearwire or the period for the collection or assessment or reassessment of Taxes due from Rio Alto or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Rio Alto and each of its Subsidiaries and affiliates has made available to Sulliden true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Rio Alto nor any of its Subsidiaries (i) is a party or affiliates has ever directly or indirectly transferred any property to or bound by supplied any material closing agreement, offer in compromise, gain recognition agreement services to or acquired any other agreement property or services from a Person with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or whom it was not dealing at arm’s length (ii) has entered into any waivers or extensions for the purposes of the statute Tax Act) for consideration other than consideration equal to the fair market value of limitations with respect to material Taxesthe property or services at the time of the transfer, supply or acquisition of the property or services.
(ej) Clearwire has There are no Knowledge circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any proposed equivalent provision under provincial or threatened Tax claims or assessments with respect foreign Law, to Clearwire Rio Alto or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) affiliates. No member of the Clearwire Disclosure ScheduleRio Alto Group has made, Clearwire and each of its Subsidiaries have withheld and paid over prepared and/or filed any elections, designations or similar filings relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or entered into any agreement or other third parties.
(g) Neither Clearwire nor any arrangement in respect of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income Taxes or Tax (“Clearwire Transaction Tax Items”). For Returns that has effect for any period ending after the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Rio Alto is not a non-resident of Clearwire, with Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date and Tax Act. Each of Rio Alto’s Subsidiaries is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (a) None Except (x) as would not reasonably be expected to have a Liberty Ventures Material Adverse Effect, (y) to the extent such Taxes or Tax matters are allocable or attributable to, or otherwise relate to, the QVC Group or (z) as otherwise set forth in Section 4.11(a) of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.Liberty Disclosure Letter:
(bi) All material (A) all Tax Returns required to be filed with any Tax Authority by Clearwire or on behalf of Liberty and each of the Contributed Ventures Subsidiaries have been filed when due (taking into account any extension of its time within which to file) in accordance with all applicable Laws; (B) all such Tax Returns are accurate and complete in all respects and have been prepared in substantial compliance with all applicable Laws; (C) all Taxes due and payable by Liberty and each of the Contributed Ventures Subsidiaries have been timely filedpaid, or withheld and all those remitted, to the appropriate Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paidAuthority, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions accordance with GAAP in the Liberty SEC Documents; (D) no written claim has been made by any Tax Authority in a jurisdiction where Liberty or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its the Contributed Ventures Subsidiaries does not file a Tax Return that Liberty or any of the Contributed Ventures Subsidiaries is, or may be, subject to Tax by or required to file or be included in a Tax Return in that jurisdiction; and (E) there are no Encumbrances on any of the assets of the Contributed Ventures Subsidiaries (or on any of the other assets that will be contributed to the Company in the Contribution) that arose in connection with any failure (or alleged failure) to pay any Tax (except for any Permitted Encumbrances);
(ii) each of Liberty and the Contributed Ventures Subsidiaries has incurred any liability (whether or not due) for material complied with all applicable Laws relating to the payment and withholding of Taxes since and has, within the date of time and the most recent balance sheet included in manner prescribed by applicable Law, withheld from and paid over to the Clearwire Financial Statements other than in the ordinary course of business.proper Taxing Authorities all amounts required to be so withheld and paid over under all applicable Laws;
(diii) Except as disclosed (A) no outstanding written claim has been received by, and no audit, action, suit or proceeding is in Section 6.7(d) of the Clearwire Disclosure Scheduleprogress, there is no currently pending audit against or administrative or judicial proceeding with respect to Taxes of Clearwire Liberty or any of its Subsidiaries. Except as disclosed the Contributed Ventures Subsidiaries in Section 6.7(drespect of any Tax; and (B) all deficiencies, assessments or proposed adjustments asserted against Liberty or any of the Clearwire Disclosure ScheduleContributed Ventures Subsidiaries by any Tax Authority have been paid or fully and finally settled;
(iv) none of the Contributed Ventures Subsidiaries (A) is or has been a member of an affiliated group (within the meaning of Section 1504 of the Code) filing a consolidated federal income Tax Return, neither Clearwire nor other than an affiliated group the common parent of which is or was Liberty (a “Liberty Affiliated Group”), (B) is or has been a member of any affiliated, combined, consolidated, unitary or similar group for state, local or foreign Tax purposes other than a group the common parent of which is Liberty or any of its Subsidiaries (ia “Liberty Combined Group”) or (C) has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Law) or as a transferee or successor, except for such liability arising from membership in a Liberty Affiliated Group or a Liberty Combined Group;
(v) no waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment or deficiency is in effect for Liberty or any of the Contributed Ventures Subsidiaries; and
(vi) none of Liberty or any of the Contributed Ventures Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(b) None of the Contributed Ventures Subsidiaries is a party to or bound by any material closing advance pricing agreement, offer in compromise, gain recognition closing agreement or any other agreement or ruling relating to Taxes with any Taxing Tax Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations that will remain in effect with respect to material Taxesthe Contributed Ventures Subsidiaries after the Contribution Closing.
(ec) Clearwire None of the Contributed Ventures Subsidiaries is a party to, or has no Knowledge of any proposed liability under, any Tax Sharing Agreement (other than the Split-Off Tax Sharing Agreement or threatened the Liberty Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectSharing Policies).
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(gd) Neither Clearwire Liberty nor any of its Subsidiaries has entered intotaken any action or knows of any fact, agreement, plan or otherwise participated other circumstance that could reasonably be expected to preclude (directly i) the Company Reclassification or indirectly) in, any the Auto Conversion from qualifying as a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, reorganization” within the meaning of Sections 6011, 6111 or 6112 Section 368(a) of the Code or (ii) the Contribution and the Treasury Regulations thereunder or has received a written opinion Split-Off, taken together, from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) being treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(btax-free transaction under Sections 368(a)(1)(D), Section 1.1(c) 355 and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) 361 of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Code.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Liberty Interactive Corp)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, filed by CE Compression and each Compression Subsidiary with the competent Tax Authority and/or Governmental Authority and all those such Tax Returns returns are true, correct and complete in any material respect pursuant to and in accordance with the applicable Laws.
(b) All Taxes which were due under the Tax returns referred to in the preceding paragraph (whether or not shown to be due on any such Tax returns) have been duly and timely paid, deducted or withheld, by CE Compression and each Compression Subsidiary, or adequate provisions have been created and accounted for in the relevant Compression Financials. All Taxes which are not yet due and payable but which relate to periods ending on or before the Closing have been fully and adequately provided for in all material respectsrespects in the books and records of CE Compression and each Compression Subsidiary.
(c) All material CE Compression and each Compression Subsidiary has deducted, withheld or collected all amounts required to be deducted, withheld or collected by it on account of Taxes owed including all amounts required to be deducted, withheld or collected in respect of amounts deemed to be paid by Clearwire it, and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following has remitted all such amounts to the Execution Date permitted appropriate Governmental Entity when required by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessLaw to do so.
(d) Except as disclosed in Section 6.7(d) There are no Encumbrances for Taxes upon the assets or properties of CE Compression or the Clearwire Disclosure ScheduleCompression Subsidiaries, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes other than Encumbrances created solely by operation of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesLaw.
(e) Clearwire has CE Compression and the Compression Subsidiaries have not been served with any written notice of assessment or other written notices concerning the payment of Taxes, and to the CE Knowledge there are no Knowledge of any proposed audits, examinations, investigations, claims, disputes or other proceedings pending or threatened Tax claims or assessments in writing with respect to Clearwire any Taxes or Tax returns of CE Compression or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectCompression Subsidiary.
(f) Except All the extraordinary transactions involving CE Compression and/or any Compression Subsidiary (including, without limitation, any acquisition or sale of interests and/or businesses as disclosed in Section 6.7(fa going concern) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld performed in compliance with Tax Laws and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesall the applicable Taxes have been duly and timely paid.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code CE Compression and the Treasury Regulations thereunder or has received a written opinion from a Compression Subsidiaries are and have been resident for tax advisor that was intended to provide protection against a tax penaltypurposes solely in their jurisdiction of incorporation and they do not have permanent establishment in other jurisdictions.
(h) Except as set forth There are no circumstances existing which could result in Section 6.7(h) the application of section 17, section 17.1, section 78, section 79, sections 80 to 80.04 of the Clearwire Disclosure ScheduleIncome Tax Act (Canada), each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its ownerany equivalent provision under applicable provincial law, for U.S. federal income tax purposes. No action has been taken by Clearwire to CE Compression or any of its Affiliates to treat NewCo LLC subsidiaries. Neither CE Compression nor any of its subsidiaries has claimed nor will claim any reserve under any provision of the Income Tax Act (Canada) or any equivalent provincial provision, if any amount could be included in the income of CE Compression or such subsidiary for any period ending after the Closing unless such reserve has been properly reflected in its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) books and this Section 6.7(h)records.
(i) Except Any transaction between the Compression Group Companies or between any CE Group Companies and the Compression Group Companies or between the Compression Group Companies and their Related Persons have been priced at arm’s length for transfer pricing purposes. None of the Compression Group Companies nor any of its subsidiaries has acquired property or services from, or disposed of property or provided services to, a person with whom it does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) for an amount that is other than the fair market value of such property or services, nor has any Compression Group Companies been deemed to have done so for purposes of the Income Tax Act (Canada). For all transactions between the Compression Group Companies, on the one hand, and any non-resident person with whom a Compression Group Company, as set forth in Section 6.7(iapplicable, was not dealing at arm’s length for the purposes of the Income Tax Act (Canada), on the other hand, the CE Compression Group Company, as applicable, has made or obtained records or documents that satisfy the requirements of paragraphs 247(4)(a) to (c) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Act.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. Except as set forth on Section 4.16(a) of the Disclosure Schedule,
(a) None of Each Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Company was required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Company are true, correct and complete in all material respects.
(c) . All material Taxes owed by Clearwire and its Subsidiaries each Company (whether or not shown on any Tax Return, including all installments on account of Taxes for the current Tax year) have been paidpaid to the proper Governmental Body. No written claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or may be subject to the payment, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementscollection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor There are no Encumbrances (other than Permitted Encumbrances) on any of its Subsidiaries has incurred the assets of any liability Company that arose in connection with any failure (whether or not duealleged failure) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in to pay any Tax. Section 6.7(d4.16(a)(i) of the Clearwire Disclosure ScheduleSchedule contains a list of all states, there is no territories and other jurisdictions (whether domestic or foreign) in which each Company has filed a franchise, income, employment, sale or use Tax Return at any time during the six-year period ending on the Closing Date, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently pending audit or administrative or judicial proceeding are the subject of audit, and (iv) lists all governmental rulings and similar determinations with respect to Taxes requested or received by each Company. The Target has delivered or made available to Buyer true, correct and complete copies of Clearwire all franchise, income, employment, sales or any use, and property Tax Returns filed by, and all examination reports, and statements of its Subsidiaries. Except as disclosed in Section 6.7(d) of deficiencies assessed against or agreed to by, each Company during the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of six-year period ending on the statute of limitations with respect to material TaxesClosing Date.
(eb) Clearwire Each Company has no Knowledge of any proposed withheld or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatcollected, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities proper Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied in all material respects with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, equityholder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(c) Since the Interim Date, no Company has incurred any Liability for Taxes outside the Ordinary Course of Business.
(d) To the Companies’ Knowledge, there is no basis for any Governmental Body to, and neither Seller nor any officer (or employee responsible for Tax matters) of any Company has been notified in writing that any Governmental Body intends to, assess any additional Taxes for any period for which Tax Returns have been filed. There is no investigation, audit, dispute or claim concerning any Liability for Taxes paid, collected or remitted by any Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any Seller or any Company has Knowledge.
(e) No Company has waived any statute or period of limitations (which has not since closed) with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time (which has not since expired) with respect to any Tax. No extension of time within which to file any Tax Return of any Company is currently in effect.
(f) No Company has filed a consent under Code § 341(f), as in effect prior to the Jobs and Growth Tax Reconciliation Act of 2003, concerning collapsible corporations. No Company has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has disclosed on its U.S. federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of U.S. federal income Tax within the meaning of Code § 6662. No Company is a party to any agreement the principal subject matter of which is the allocation, sharing or reimbursement of Taxes (a “Tax Sharing Agreement”), excluding (for the avoidance of doubt) any lease, purchase order, supply agreement or other similar contract entered into in the Ordinary Course of Business. No Company has been a member of any Affiliated Group filing a consolidated U.S. federal, state, local or foreign (including Canadian provincial or municipal) income Tax Return (other than a group the common parent of which was the Target). No Company has any Liability for Taxes of any Person (other than any Company) under Treasury Regulation § 1.1502-6 (or any similar provision of any other Law), as a transferee or successor, or otherwise by operation of law. No Company has participated in an international boycott within the meaning of Code § 999. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the Closing Date.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoNo Company has, or otherwise participated (directly or indirectly, participated in any transaction (including, the Transactions) in, any that would constitute (i) a “reportable transaction” or “listed transaction”, ” as defined in Treasury Regulation § 1.6011-4 or any reportable transaction the principal purpose of which was (ii) a “tax avoidance, within the meaning of Sections 6011, shelter” as defined in Code § 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(h) Except as set forth in Section 6.7(hNo Company 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) of ending after the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated Closing Date as a partnership result of any: (A) change in method of accounting for a taxable period ending on or prior to the Closing Date; (yB) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than “closing agreement” as described in Section 1.1(bCode § 7121 (or any corresponding or similar provision of state, local or foreign (including Canadian provincial or municipal) Tax Law) executed on or prior to the Closing Date; (C) intercompany transactions occurring at or prior to the Closing or any excess loss account in existence at Closing described in Treasury Regulations under Code § 1502 (or any corresponding or similar provision of state, provincial, municipal, local or foreign Tax Law); (D) installment sale or open transaction disposition made, Section 1.1(cprepaid amount received, on or prior to the Closing Date, except to the extent that such sale, disposition or prepayment results in an offsetting liability which is taken into account in the determination of Working Capital (as in the case, for example, a deposit or deferred revenue); or (E) and this Section 6.7(helection under Code § 108(i).
(i) Except as set forth in Section 6.7(iEach Company (other than the Target and Hercules) of the Clearwire Disclosure Scheduleis, the Merger and other transactions contemplated by Articles 2has been at all times since its inception, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain either a corporation under Section 1502 subchapter C of the Code or a disregarded entity owned by a corporation under subchapter C of the Code for U.S. federal, and, as applicable, state and local income Tax purposes. Hercules is, and has been at all times since its inception, a corporation under subchapter C of the Regulations thereunder Code for U.S. federal, state and local income Tax purposes. The Target has been a partnership for U.S. federal, and, as applicable, state and local income Tax purposes from its inception until December 31, 2009, as of which date Target elected to be (and since such date has been) classified as a corporation for U.S. federal, state and local income Tax purposes. No Company owns an interest, directly or indirectly, in any comparable provision under joint venture, partnership, limited liability company, association, or other entity that is treated as a partnership for U.S. federal, state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)tax purposes.
(j) Section 6.7(jNo Company is subject to Tax in any country other than its place of incorporation or formation by virtue of having a permanent establishment or other fixed place of business in such other country. No Company is a “passive foreign investment company” within the meaning of Code § 1297. No Company is, nor at any time has been, subject to (i) the dual consolidated loss provisions of Code § 1503(d) or (ii) the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability recharacterization provisions of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerCode § 952(c)(2).
(k) Any liabilities None of Clearwiresections 78, with 80, 80.01, 80.02, 80.03 or 80.04 of the possible exception Income Tax Act (Canada), or any equivalent provision of the Tax legislation of any indebtedness issued by Clearwire between the Execution Date province have applied or will apply to any Canadian Resident Company at any time up to and including the Closing Date.
(l) No Canadian Resident Company has acquired property from a non-arm’s length Person, within the meaning of the Income Tax Act (Canada), for consideration, the value of which is less than the fair market value of the property acquired, in accordance circumstances which could subject it to a liability under section 160 of the Income Tax Act (Canada).
(m) For all transactions between any Canadian Resident Company and any non-resident Person with Sections 10.1(b)(iv)(Fwhom such Company was not dealing at arm’s length during a taxation year commencing after 1998 and ending on or before the Closing Date, each Company has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) or 10.1(b)(iv)(Hto (c) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(DIncome Tax Act (Canada).
(n) Each Company that carries on business in Canada is duly registered under subdivision (d) of Division V of Part IX of the Excise Tax Act (Canada) with respect to the goods and services tax and harmonized sales tax and, if applicable, under Division I of Chapter VIII of Title I of the Quebec Sales Tax Act with respect to the Quebec sales tax.
(o) The Interests are not taxable Canadian property for purposes of section 116, and within the meaning, of the Income Tax Act (Canada).
(p) Sections 4.16 and 4.22 contain all of the Companies’ representations and warranties with respect to the matters relating to Tax addressed in such sections. For the sake of clarity, the preceding sentence does not apply to Article IX.
Appears in 1 contract
Samples: Merger Agreement (American Tire Distributors Holdings, Inc.)
Tax. (a) None With respect to Loan No. 20050022 on the Mortgage Loan Schedule (the "Mexico Loan"), the Seller hereby agrees to indemnify the Trust for any and all costs and expenses incurred by the Trust, including interest on Advances, Special Servicing Fees, Additional Trust Fund Expenses and the costs and expenses of the assets Special Servicer in connection with, or arising out of Clearwire the enactment after the Closing Date of, any law of Mexico or any political subdivision thereof changing in any way the laws relating to the taxation of its Subsidiaries is subject mortgages or security agreements or debts secured by mortgages or security agreements or the interest of a lender or secured party in the property covered thereby or interest charged under a loan or requiring any withholding of taxes by a borrower in respect of a loan, which, in each case, applies to the Mexico Loan (any material Encumbrance for Taxessuch enacted legislation, except for liens for Taxes the "Mexico Tax Legislation"); provided that the foregoing indemnification shall not yet due apply to Special Servicing Fees and payableother costs and expenses incurred by the Special Servicer that (i) are incurred as a result of the failure of the related mortgagor under the Mexico Loan to make certain "gross-up" payments pursuant to the terms of the Mexico Loan loan agreement (such payments, the "Mexico Gross-Up Payments") and (ii) are incurred prior to the date that the failure of the related mortgagor to make such Mexico Gross-Up Payment shall constitute a Servicing Transfer Event with respect to the Mexico Loan in accordance with clause (iii) of the definition of "Servicing Transfer Event".
(b) All material Tax Returns As specified in Section 3.33(a) of the Pooling and Servicing Agreement, the Seller will have the option, exercisable in its sole discretion, to make Mexico Gross-Up Payments that are required to be filed made by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since mortgagor under the date terms of the most recent balance sheet included in loan agreement for the Clearwire Financial Statements other than in Mexico Loan, to the ordinary course of business.
(d) Except as disclosed extent the mortgagor fails to make such payments. As specified in Section 6.7(d3.33(b) of the Clearwire Disclosure SchedulePooling and Servicing Agreement, there is no currently pending audit or administrative or judicial proceeding with respect the Seller will have the option, exercisable in its sole discretion, to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) purchase the Mexico Loan upon the enactment of the Clearwire Disclosure ScheduleMexico Tax Legislation, neither Clearwire nor so long as an event of default under the Mexico Loan has occurred and is continuing. The Seller further represents that as of the Closing Date and as of any date thereafter on which the Mexico Loan is included as part of its Subsidiaries the Trust Fund (i) is a party the obligation of the mortgagor under the Mexico Loan to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or make the Mexico Gross-Up Payments and (ii) has entered into any waivers or extensions the ability of the statute of limitations with respect mortgagee under such loan agreement to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in accelerate the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) maturity of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 Mexico Loan as a result of the Code and mortgagor's failure to make any Mexico Gross-Up Payments required by such loan agreement (the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
preceding clauses (i) Except and (ii) are hereinafter referred to collectively as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”"Mexico Representation Remedies"). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respectseach case, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing are enforceable in accordance with Sections 10.1(b)(iv)(Ftheir terms under such loan agreement, except as such enforcement may be limited by (a) anti-deficiency laws or 10.1(b)(iv)(Hbankruptcy, receivership, conservatorship, reorganization, insolvency, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and by (b) general principles of this Agreementequity (regardless of whether such enforcement is considered in a proceeding in equity or at law) (the preceding clauses (a) and (b) are hereinafter referred to collectively as the "Mexico Representation Qualifications"); provided that the Mexico Representation Qualifications shall not apply to the foregoing representation regarding the enforceability of the Mexico Representation Remedies to the extent that the enforceability of such remedies is prohibited solely due to (1) the Mexico Tax Legislation expressly prohibiting the exercise of such remedies or (2) a final, deemed for U.S. federal income tax purposes to be assumed non-appealable determination by NewCo LLC in connection with a court of competent jurisdiction that the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Mexico Tax Legislation prohibits the exercise of such remedies.
Appears in 1 contract
Samples: Mortgage Loan Purchase and Sale Agreement (Banc of America Commercial Mortgage Inc., Series 2005-5)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Trident and the Trident Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Trident or any of the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in respect of any Tax or Tax asset and neither Trident nor any of its the Trident Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Trident or the Trident Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or indirectlyany of the Trident Subsidiaries.
(vii) in, Neither Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Trident or any Trident Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Trident or any Trident Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Trident nor any Trident Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Trident or other Trident Subsidiaries).
(xii) Trident is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Clearwire Trident or any of its Affiliates Trident Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents publicly available prior to the date of this Agreement reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the Regulations thereunder (meaning of an applicable Tax treaty), branch or taxable presence in any comparable provision under state or local income Tax law) or, to the Knowledge jurisdiction other than its jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)incorporation.
(jc) Section 6.7(j) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of the Clearwire Disclosure sets forthany fact or circumstance, in all material respects, the information concerning that could reasonably be expected to cause Sun to be treated as a Tax resident of any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes jurisdiction other than Israel following the Sun Merger.
(kd) Any liabilities None of Clearwire, the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the possible exception fair value of the underlying Trident Common Stock (or any shares of any indebtedness issued by Clearwire between Trident Subsidiary) for which the Execution Date and options or warrants were exercisable at the Closing in accordance with Sections 10.1(b)(iv)(Ftime such options or warrants were issued, (ii) are, or 10.1(b)(iv)(H) of this Agreementhave ever been, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due All income and payable.
(b) All other material Tax Returns required by Law to be filed by Clearwire or any of its Subsidiaries with respect to each Purchased Company and each Purchased Subsidiary have been timely filedfiled (taking into account applicable extensions), and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All income and other material Taxes owed required by Clearwire Law to be paid by each Purchased Company and its Subsidiaries each Purchased Subsidiary (whether or not shown on any Tax Return) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. .
(c) Except for Permitted Liens, there are no Liens for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor upon any of its Subsidiaries has incurred the property or assets of any liability (whether Purchased Company or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessPurchased Subsidiary.
(d) Except as disclosed The Purchased Companies and the Purchased Subsidiary have complied in Section 6.7(dall material respects with applicable Law with respect to Tax withholding and all information reporting and backup withholding requirements, including the maintenance of required records with respect thereto.
(e) No audits, proceedings or other examinations of any Tax Return of any Purchased Company or the Purchased Subsidiary are in progress, pending or, to the Knowledge of Sellers, threatened in writing. No deficiencies for Taxes of any Purchased Company or the Purchased Subsidiary have been claimed, proposed or assessed by any Governmental Authority, except for deficiencies that have been paid, settled or otherwise resolved.
(f) None of the Clearwire Disclosure Schedule, there is no currently pending audit Purchased Companies or administrative the Purchased Subsidiary has received a written claim to pay Taxes or judicial proceeding file Tax Returns from a Governmental Authority in a jurisdiction where such Purchased Company or such Purchased Subsidiary has not filed Tax Returns that has not been resolved. None of the Purchased Companies or the Purchased Subsidiary has (i) waived any statute of limitations with respect to Taxes or agreed to extend the period for assessment or collection of Clearwire any Taxes, which waiver or extension is still in effect, or (ii) executed or filed any power of attorney with any taxing authority, which is still in effect.
(g) None of the Purchased Companies or the Purchased Subsidiary is or has ever been a member of an affiliated group with which it has filed (or been required to file) consolidated, combined, unitary or similar Tax Returns, other than the Parent Group. None of the Purchased Companies or the Purchased Subsidiary (i) has any liability for the Tax of any Person (other than the Purchased Companies and the Purchased Subsidiary, or the Parent Group) under Treasury Regulation Section 1.1502-6 (or any comparable or similar provision of its Subsidiaries. Except federal, state, local or foreign Law), as disclosed a transferee or successor, pursuant to any contractual obligation, or otherwise pursuant to applicable Law, in Section 6.7(d) of the Clearwire Disclosure Scheduleeach case, neither Clearwire nor any of its Subsidiaries other than pursuant to customary commercial Contracts not primarily related to Taxes, or (iii) is a party to or bound by any material closing agreementTax sharing, offer in compromise, gain recognition indemnification or allocation agreement or other similar Contract, other than any other agreement with customary commercial Contracts not primarily related to Taxes.
(h) No Purchased Subsidiary will be required to include any Taxing Authority item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of (i) any 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 indemnity Law) made or requested prior to the Closing, (ii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax sharing agreement with Law) executed prior to the Closing, or (iii) installment sale or open transaction disposition made prior to the Closing.
(i) None of the Purchased Companies or the Purchased Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the prior two (2) years.
(j) None of the Purchased Companies or the Purchased Subsidiary (i) is a party to any personjoint venture, partnership, or other arrangement that is treated as a partnership for federal income Tax purposes or (ii) has entered into any waivers or extensions made an entity classification (“check-the-box”) election under Section 7701 of the statute of limitations with respect to material TaxesCode.
(ek) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) Each of the Clearwire Disclosure SchedulePurchased Companies is, Clearwire and each of at all times since its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employeesformation has been, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity disregarded as separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire owner for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireunder Treasury Regulations Section 301.7701-3. The Purchased Subsidiary is, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreementat all times since its formation has been, deemed treated as a C corporation for U.S. federal income tax Tax purposes.
(l) None of the Purchased Companies or the Purchased Subsidiary has engaged in a trade or business, had a permanent establishment or otherwise become resident for Tax purposes outside the United States.
(m) None of the Purchased Companies or the Purchased Subsidiary has been a party to be assumed by NewCo LLC in connection with any “listed transaction” within the transactions described in Articles 3 meaning of Section 6707A of the Code and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Regulations Section 1.7071.6011-5(a)(6)(i)(D4(b)(2) (or any corresponding or comparable state, local or non-U.S. Tax Law).
Appears in 1 contract
Samples: Equity Purchase Agreement (Casella Waste Systems Inc)
Tax. 1.1 All sums set out in this Agreement or otherwise payable by a party pursuant to this Agreement shall be deemed to be exclusive of any VAT which is chargeable on the supply or supplies for which such sums (or any part thereof) are the whole or part of the consideration for VAT purposes.
1.2 Where, pursuant to the terms of this Agreement or any document ancillary to this Agreement, a party (the “Supplier”) makes a supply to another party (the “Recipient”) for VAT purposes and VAT is or becomes chargeable on such supply, the Recipient shall, subject to the receipt of a valid VAT invoice, pay to the Supplier (in addition to and at the same time as any other consideration for such supply) a sum equal to the amount of such VAT.
1.3 The Vendor shall so far as it is able to do so and to the extent required by law:
(a) None retain ownership of all VAT Records relating to the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Business and payable.the Assets; and
(b) All material Tax Returns permit the Purchaser at all reasonable times and subject to reasonable written notice to inspect and take copies of the VAT Records at the Purchaser’s cost for such period as may be required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respectslaw.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on 1.4 Notwithstanding any Tax Return) have been paid, except for those Taxes being contested other provision in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any part of its Subsidiaries has incurred any liability outgoings or expenses relating to the Business or the Assets in respect of, or which represents, VAT shall be borne by the party for whom such VAT constitutes input tax for VAT purposes (whether or not due) for material Taxes since the date of term “input tax” to have the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(dsame meaning given to it by section 24(1) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or VAT Act).
1.5 Notwithstanding any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or provision in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) inthis Agreement, any “listed transaction”receipt, or any reportable transaction part of any receipt, relating to the principal purpose Business or the Assets in respect of, or which represents, VAT whether received by the Purchaser or the Vendor, whether before or after Completion, shall be retained by or promptly paid to the party which is required to account to Customs for the VAT chargeable on the relevant supply or supplies.
1.6 References in this Agreement to any cost or expense incurred by any party and in respect of which was tax avoidancesuch party is to reimbursed or indemnified by any other party under the terms of, within or the meaning amount of Sections 6011which is to be taken into account in any calculation or computation set out in, 6111 this Agreement shall include such part of such cost or 6112 expense as represents any VAT but only to the extent that such first party is not entitled to credit or repayment in respect of such VAT from Customs.
1.7 The Purchaser shall, and shall procure that each of the Code Target Companies and their Affiliates shall, provide the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure ScheduleVendor, the Merger Administrators and other transactions contemplated by Articles 2their Representatives with such information as the Vendors, 3 the Administrators and 4 of this Agreement will not result their Representatives reasonably request in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, writing insofar as such information relates to the Knowledge of Clearwire, any other material items of income Assets or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date Target Companies and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC is required in connection with the transactions described tax affairs of the Vendor including, but not limited to, information requested in Articles 3 connection with tax returns and 4 hereof computations of the Vendor outstanding at Completion and in connection with all negotiations, correspondence and agreements in respect of the Vendor’s tax liabilities.
1.8 The Purchaser and the Vendor agree, at the Purchaser’s expense and to the extent permitted by Law and in accordance with their duties, to elect to apply Section 362(e)(2)(C) of the Internal Revenue Code of 1986, as amended, with respect to any deemed contribution of intra-group receivables from the Vendor to Xxxxxxxx.xxx Limited. Nothing in this Clause will constitute “qualified liabilities” as defined require the Administrators: (i) to became a US taxpayer or tax filer, make any US filing or reporting in Treasury Regulation Section 1.707-5(a)(6)(i)(D)connection with the election or otherwise, (ii) remain in office or (iii) take an action to the extent that such action would require them to make an actual payment of tax or incur an expense. The Purchaser shall indemnify and keep indemnified the Vendor and the Administrators against any Claim or Losses arising out of or in connection with any actions taken in accordance with the Purchaser’s request.
Appears in 1 contract
Tax. (a) None In respect of the assets Company (collectively, each of Clearwire the following representations and warranties shall be considered as the “Tax Warranties”):
9.1. adequate provision or any of its Subsidiaries reserve has been made in the Audited Accounts for all Tax liabilities to be assessed or for which it is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payableaccountable under applicable Law.
(b) All material 9.2. all Tax Returns required to be filed by Clearwire or any of its Subsidiaries returns have been timely filed, filed and they have provided information required for the Tax purposes in accordance with the applicable Laws. Such filed returns are true and accurate in all those Tax Returns are true, correct respects and complete have been completed in accordance with Applicable Law in all material respects.
(c) All material . The Company has paid all Taxes owed by Clearwire due and its Subsidiaries payable (whether or not shown on any tax returns).
9.3. There is no Tax Return) deficiency outstanding or assessed or proposed against the Company, nor has the Company extended the period for the assessment or collection of any Tax. No audit or other examination of any tax return of the Company by any Tax Authority is presently in progress, nor has the Company been notified of any request for such a prospective audit or other examination. The Seller warrants that no adjustment relating to any tax returns filed by the Company has been proposed by any appropriate authority to the Company, or any representative thereof. As of the Accounts Date, and as per the Accounts Statement the Company does not have any liability for any unpaid Taxes which has not been accounted for or reserved in the delivered Audited Accounts and Accounts Statement.
9.4. all Tax payments have been paidduly and punctually made in accordance with applicable Laws and except as stated as part of the contingent liabilities, the Company has not received any demand imposing liability to pay any penalty, fine, surcharge or interest to any Tax Authority in connection with any delays relative to Tax payments.
9.5. The Company has not received any written notice in the past 7 (seven) years challenging the Tax benefits under Income Tax Act, 1961 that have been properly claimed by the Company.
9.6. The Company has withheld with respect to its employees and all other third parties, all applicable Taxes required to be withheld by applicable Law and have made payment of such Taxes to the appropriate authorities within the due dates thereof. The Company has withheld and paid for appropriate contributions to the provident fund, superannuation, gratuity, employee state insurance and any other contributions as required by applicable Law.
9.7. The Company has paid service tax on listing fee and promotional income for each financial year after the financial year 2014-15.
9.8. The Company has ensured that appropriate GST has been paid by the Company, under reverse charge mechanism on procurements from unregistered persons. Further, the Company warrants that the GST credit balance as at the Closing Date is available.
9.9. The Company, and the Seller on behalf of the Company has not received any written notice of any audit or other proceeding by a Tax Authority in respect of any Tax returns referred to above. There is no pending or to the Seller and Company’s knowledge, threatened litigation or any other legal proceeding ending before Tax Authority except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiariesletter.
9.10. Except as Amounts disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or Audited Accounts and Accounts Statement as being recoverable from any Tax indemnity or Authorities are actually recoverable from such Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or Authorities and adequate provisions have been made in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectCompany’s audited financial statements for amounts of tax that are not recoverable from the Tax Authorities.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Share Purchase Agreement
Tax. (a) None of To the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for TaxesSeller’s Knowledge, except for liens for Taxes not yet due and payable.
(b) All material all Tax Returns required to be filed by Clearwire or any on behalf of its Subsidiaries each Seller have been duly filed on a timely basis and such Tax Returns were, when filed, and all those Tax Returns are true, complete and correct and complete in all material respects.
(c) . All material Taxes owed shown to be payable on such Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are due and payable by Clearwire and its Subsidiaries a Seller with respect to items or periods covered by such Tax Returns (whether or not shown on any such Tax ReturnReturns). Except as set forth in Section 2.17(a) of the Disclosure Schedule, to the extent applicable, each Seller has withheld and paid over all Taxes required to have been paidwithheld and paid over, except and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no Liens on any of the Purchased Assets with respect to Taxes.
(b) The amount of either Seller’s liabilities for those unpaid Taxes being contested for all periods through December 31, 2011 does not, in good faith and the aggregate, exceed the amount of the liability accruals for which adequate reserves have been established in Clearwire’s Taxes reflected on the Financial Statements. Except , and the Most Recent Financial Statements properly accrue in accordance with GAAP all liabilities for Taxes that may arise solely as result of actions a Seller payable after December 31, 2011 attributable to transactions and events occurring prior to such date. No liability for Taxes of a Seller has been incurred or transactions following material amount of taxable income has been realized (or prior to and including the Execution Closing Date permitted by this Agreementwill be incurred or realized) after December 31, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements 2011 other than in the ordinary course of business.
(dc) Except as disclosed in Section 6.7(d) No audit of the Clearwire Disclosure ScheduleTax Returns of or including either Seller by a Governmental Authority or Regulatory Authority is in process, there is threatened or, to the Seller’s Knowledge, pending. To the Seller’s Knowledge, no currently pending audit deficiencies exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire either Seller, and neither Seller has received notice that such Seller has not filed a Tax Return or paid Taxes required to be filed or paid. Neither Seller is a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened against any Seller or any of its Subsidiariesassets. Except as disclosed 138358.00102/7150960v.7
(d) Neither Seller is (or has it ever been) a party to any tax sharing agreement. Since inception, neither Seller has been a distributing corporation or a controlled corporation in a transaction described in Section 6.7(d355(a) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesCode.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be have been filed by Clearwire or any the Acquired Company and the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of its Subsidiaries the PWMG Holdings Affiliated Group) have been timely filedfiled (taking into account applicable extensions of time to file), and all those such Tax Returns are true, were complete and correct and complete in all material respects.
. All Taxes due and owing by the Acquired Company and the PWMG Holdings Affiliated Group (c) All material Taxes owed by Clearwire and its Subsidiaries (for each taxable period during which during the Acquired Company was a member of the PWMG Holdings Affiliated Group), whether or not shown on any Tax Return) , have been paid, except for those Taxes being contested in good faith and for . Neither the Acquired Company nor any member of the PWMG Holdings Affiliated Group is the beneficiary of an extension of time within which adequate reserves have been established in Clearwire’s Financial Statements. Except to file any Tax Return.
(b) No deficiency for Taxes that may arise solely as result has been claimed, raised, proposed, asserted or assessed in writing by any Governmental Authority against the Acquired Company or the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of actions the PWMG Holdings Affiliated Group) which remains unpaid or transactions following unresolved. There are no audits, examinations or other administrative or judicial proceedings currently ongoing or pending with respect to any Taxes of the Execution Date permitted by this AgreementAcquired Company or the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group), and neither Clearwire the Acquired Company, HTC, Seller nor any of its Subsidiaries their Affiliates has incurred received any liability notice nor has any reason to believe that any such audit, examination or other administrative or judicial proceeding is contemplated or threatened. No claim has ever been made by a Governmental Authority in a jurisdiction where the Acquired Company or the PWMG Holdings Affiliated Group (whether or not due) for material Taxes since each taxable period during which the date Acquired Company was a member of the most recent balance sheet included PWMG Holdings Affiliated Group) does not file Tax Returns that such Acquired Company or the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) is or may be subject to taxation by that jurisdiction. 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 the Clearwire Financial Statements other than in Acquired Company or the ordinary course PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of businessthe PWMG Holdings Affiliated Group).
(c) The separate existence of Seller is disregarded for federal income tax purposes and, as a result, the Person deemed for federal income tax purposes to be transferring the stock of the Acquired Company to Buyer hereunder is PWMG Holdings.
(d) Except as disclosed in Section 6.7(dThere are no liens for Taxes (other than Permitted Liens) upon any of the Clearwire Disclosure Schedule, there assets of the Acquired Company. There has been no notice that any Governmental Authority has threatened that is no currently pending audit or administrative or judicial proceeding with respect to it in the process of imposing any Encumbrance for Taxes of Clearwire or on any of its Subsidiaries. Except as disclosed in Section 6.7(d) the assets of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesAcquired Company.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all All Taxes required to have been withheld and paid in connection with payments or collected by the Acquired Company or the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) (including without limitation, Taxes required to have been withheld or collected from employees, independent contractors, creditorsand customers, shareholders and any other applicable payees) have been withheld and collected and, to the extent required by Law, timely paid to the appropriate Governmental Authority. The Acquired Company and the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) has furnished or been furnished properly completed and valid exemption or other third partiesappropriate certificates for all transactions treated as exempt from sales, use, value added, ad valorem, transfer or other similar Taxes.
(f) The Acquired Company is not a party to any Tax sharing, Tax allocation, Tax indemnity or similar agreement or arrangement.
(g) Neither Clearwire nor any of its Subsidiaries The Acquired Company is not and has entered into, or otherwise participated (directly or indirectly) in, any never been a “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, United States real property holding corporation” within the meaning of Sections 6011, 6111 or 6112 Section 897(c)(2) of the Code and during the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyapplicable period described in Section 897(c)(1)(A)(ii) of the Code.
(h) Except as set forth The Acquired Company has not 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 6.7(h) 355 or Section 361 of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Code.
(i) Except Neither the Acquired Company nor the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) is a party to, has participated in, or is currently participating in, a “reportable transaction” as set forth defined in Section 6.7(i6707A(c) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and Section 1.6011-4(b) of the Regulations thereunder Treasury Regulations. The Acquired Company and the PWMG Holdings Affiliated Group (or any comparable provision under state or local for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) has disclosed on its federal income Tax law) or, Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the Knowledge meaning of Clearwire, any other material items Section 6662 of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Code.
(j) Section 6.7(j) No closing agreements, private letter rulings, technical advice memoranda or similar agreements or rulings relating to Taxes have been entered into or issued by a Taxing Authority with or in respect of the Clearwire Disclosure sets forth, in all material respects, Acquired Company or the information concerning any limitations on PWMG Holdings Affiliated Group (for each taxable period during which the ability Acquired Company was a member of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerPWMG Holdings Affiliated Group).
(k) Any liabilities The Acquired Company is not a party to any Contract or plan that has resulted or would result, separately or in the aggregate, in the payment of Clearwire(i) any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign Tax Law), (ii) any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provision of state, local or foreign Tax Law), and (iii) any amount constituting nonqualified deferred compensation under Section 409A of the Code.
(l) Neither the Acquired Company nor the PWMG Holdings Affiliated Group (for each taxable period during which the Acquired Company was a member of the PWMG Holdings Affiliated Group) has (i) made, revoked or changed any Tax election, (ii) changed any Tax accounting period, (iii) revoked or changed any Tax accounting method, (iv) surrendered any right to claim a refund of Taxes, or (v) settled or compromised any Tax liability. The Acquired Company will not be required to include any item of income in or exclude any item of deduction from, taxable income for any period ending after the Closing Date as a result any (vi) written and legally binding agreement with a Taxing Authority relating to Taxes, (vii) installment sale or open transaction or intercompany transaction made on or prior to the Closing Date, or (viii) prepaid amount received on or prior to the Closing Date.
(m) The Acquired Company has never been member of an Affiliated Group filing a consolidated federal income Tax Return other than the PWMG Holdings Affiliated Group. The PWMG Holdings Affiliated Group has filed (or will file) a consolidated federal income Tax Return with the possible exception of any indebtedness issued by Clearwire between Acquired Company for the Execution Date and taxable period that includes the Closing Date. The Selling Consolidated Group will be eligible to join in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(Hthe making of an election pursuant to Section 338(h)(10) of this Agreementthe Code in connection with the purchase of the Shares by Buyer from Seller hereunder.
(n) The Acquired Company (i) is not a partner for Tax purposes with respect to any joint venture, partnership, or other arrangement or Contract which is treated as a partnership for Tax purposes, (ii) does not own a single member limited liability company or other entity that is treated as a disregarded entity, (iii) is not a shareholder of a “controlled foreign corporation” as defined in Section 957 of the Code, (iv) is not a “personal holding company” as defined in Section 542 of the Code, and (v) is not a shareholder in a “passive foreign investment company” within the meaning of Section 1297 of the Code.
(o) Neither HTC, Seller, PWMG Holdings nor any Person deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with transferring the stock of the Acquired Company hereunder is a “foreign person” within the meaning of Code Section 1445 and the transactions described contemplated in Articles 3 and 4 hereof will constitute this Agreement are not subject to the withholding requirements imposed by Code Section 1445.
(p) None of the assets of the Acquired Company is property that the Acquired Company or the PWMG Holdings Affiliated Group is required to treat as being owned by any other Person pursuant to the so-called “qualified liabilitiessafe harbor lease” as defined in Treasury Regulation provisions of former Section 1.707168(f)(8) of the Code. None of the assets of the Acquired Company directly or indirectly, secures any debt the interest on which is tax exempt under Section 103(a) of the Code. The Acquired Company does not presently hold assets for which an election under Section 108(b)(5) of the Code was made. None of the assets of the Acquired Company is “tax-5(a)(6)(i)(D)exempt use property” within the meaning of Section 168(h) of the Code.
Appears in 1 contract
Tax. (a) None To the extent relating to the Acquired Assets or Assumed Liabilities, (i) since January 1, 2014, Seller has (A) timely filed (or caused to be timely filed) (after taking into account any extension of the assets of Clearwire or any of its Subsidiaries is subject time within which to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bfile) All material all Tax Returns required to be filed by Clearwire it; and (B) timely paid (or any of has caused to be timely paid on its Subsidiaries have been timely filed, and behalf) all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown or required to be shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or ); (ii) has entered into any waivers or extensions of Seller currently is not the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge beneficiary of any proposed or threatened extension of time within which to file any Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatReturn; (iii) since January 1, if upheld2014, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have Seller has withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments any amount paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders stockholder or other third parties.
party, and all IRS Forms W-2 and 1099 required with respect thereto have been properly completed in all material respects and timely filed; (giv) Neither Clearwire nor no deficiencies for any material amount of Taxes have been proposed, asserted or assessed against Seller as of the date hereof; and (v) there are no Encumbrances (other than Permitted Encumbrances) on any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, the Acquired Assets that arose in connection with any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder failure (or alleged failure) to pay any comparable provision under state or local income Tax law) or, and to the Knowledge of ClearwireSeller there is no basis for assertion of any claims attributable to Taxes which, if adversely determined, would result in any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)such Encumbrance.
(jb) Section 6.7(jTo the extent relating to the Acquired Assets or Assumed Liabilities, (i) no examination or audit of any material Tax Return of Seller or any administrative or judicial proceeding in respect of any material amount of Tax is currently pending or threatened in writing; (ii) since January 1, 2014, no claim has been made, and to the Clearwire Disclosure sets forthKnowledge of Seller no claim is expected to be made, by any Governmental Authority in all material respects, the information a jurisdiction where Seller does not file Tax Returns that Seller is or may be subject to taxation by that jurisdiction; and (iii) there is no current dispute or claim concerning any limitations on the ability of NewCo Taxes either (A) claimed or raised by any Governmental Authority in writing or (B) as to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerwhich Seller has Knowledge.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. Except as set forth on Schedule 6.16:
(a) None of the assets of Clearwire Each Seller Party has filed or any of its Subsidiaries is subject caused to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material be filed on a timely basis all Tax Returns and all reports with respect to Taxes that are or were required to be filed by Clearwire pursuant to Applicable Requirements with respect to the Business, the Acquired Assets, the Assumed Liabilities or any of its Subsidiaries have been timely filed, and all those the Subsidiaries. All Tax Returns and reports are true, correct and complete in all material respects.
(c) All material respects and disclose all Taxes owed by Clearwire required to be paid in respect of the Business, the Acquired Assets, the Assumed Liabilities and its Subsidiaries (the Subsidiaries. Each Seller Party has timely paid or caused to be timely paid all Taxes related to the Business, the Acquired Assets, the Assumed Liabilities or the Subsidiaries, whether or not shown on any Tax Return. No Seller Party is the beneficiary of any extension of time within which to file any Tax Return related to the Business, the Acquired Assets, the Assumed Liabilities or the Subsidiaries, and no Seller Party has waived or been requested to waive any statute of limitations in respect of Taxes which waiver is currently in effect.
(b) Sellers have delivered or made available to Buyer copies of all Tax Returns related to the Business, Acquired Assets, the Assumed Liabilities or the Subsidiaries filed since January 1, 2009. Schedule 6.16(b) sets forth each state, county, local municipal, domestic or foreign jurisdiction or Governmental Authority in or with which, with respect to the Business, the Acquired Assets, the Assumed Liabilities or the Subsidiaries, any Seller Party has at any time since January 1, 2009 (i) filed a Tax Return, (ii) been paidregistered for any Tax purpose, except for those or (iii) been qualified to do business.
(c) Each of Parent and LendingTree, with respect to the Business, and Sellers have complied in all material respects with all provisions of Tax Law relating to withholding, payment and remittance of Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result information reporting with respect thereto, and each of actions or transactions following Parent and LendingTree, with respect to the Execution Date permitted by this AgreementBusiness, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since and Sellers have, within the date of the most recent balance sheet included time and in the Clearwire Financial Statements other than in manner prescribed by Tax Law, paid over to the ordinary course of businessproper Governmental Authorities all amounts required.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there There is no currently Tax ruling, request for ruling or settlement, compromise, closing or Tax collection agreement in effect or pending audit which does or administrative could affect the Liability of any Seller Party or judicial proceeding Buyer for Taxes with respect to Taxes of Clearwire the Business, the Acquired Assets, the Assumed Liabilities or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of Subsidiary for any period after the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesClosing Date.
(e) Clearwire has no Knowledge No Acquired Asset or asset of any proposed Subsidiary is (i) “tax-exempt use property” within the meaning of Section 168(h)(1) of the Code or threatened Section 470(c)(2) of the Code, (ii) tax-exempt bond financed property within the meaning of Section 168(g) of the Code, (iii) properly treated as owned by persons other than the applicable Seller for federal income Tax claims purposes or assessments with respect (iv) subject to Clearwire a lease under Code Section 7701(h) or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectpredecessor provision.
(f) Except Neither Parent nor LendingTree, with respect to the Business, nor any Seller has in the past 5 years been a party to a “reportable transaction,” as disclosed such term is defined in Treasury Regulations Section 6.7(f) of the Clearwire Disclosure Schedule1.6011-4(b)(1). Each Seller, Clearwire and each of its Subsidiaries have withheld Parent and paid over LendingTree, with respect to the relevant Taxing Authorities Business, has disclosed on its federal income Tax Returns all Taxes required positions taken therein that could give rise to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesa substantial understatement of federal income Tax within the meaning of Section 6662 of the Code.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, There is no Action or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) assessment pending or, to the Knowledge of ClearwireSeller Parties, any other material items proposed or threatened with respect to Taxes of income Parent or Tax (“Clearwire Transaction Tax Items”). For LendingTree, with respect to the avoidance of doubtBusiness, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any Seller.
(h) No claim has ever been made by a Governmental Authority in writing in a jurisdiction where any Seller has never paid Taxes or filed Tax Returns asserting that Parent or LendingTree, with respect to the Business, or any Seller is or may be subject to Taxes assessed by such jurisdiction.
(i) All deficiencies asserted or assessments made as a result of its Subsidiaries any examination of the Tax Returns referred to in clause (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo a) have been paid in the LLC Contribution)full.
(j) Section 6.7(jAll Tax sharing arrangements and tax indemnity agreements relating to Parent or LendingTree, with respect to the Business, or any Seller (other than this Agreement) of will terminate prior to the Clearwire Disclosure sets forth, in all material respects, Closing Date and no Seller will have any liability thereunder on or after the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerClosing Date.
(k) Any liabilities No Seller has been a member of Clearwireany Tax Group other than each Tax Group of which it is a member as of the date hereof, and no Seller nor any Subsidiary has had any direct or indirect ownership interest in any corporation, partnership, joint venture or other entity other than the Subsidiaries.
(l) Neither Parent nor LendingTree, with respect to the possible exception Business, nor any Seller has any liability for Taxes of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreementanother Person, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in including under Treasury Regulation Section 1.707§ 1.1502-5(a)(6)(i)(D6 (or any similar provision of state, local or foreign law).
(m) RETS is and at all times since its formation has been properly classified either as a partnership or as an entity disregarded from its owner for federal and applicable state, local and other income Tax purposes.
Appears in 1 contract
Tax. (a) None All Tax Returns required to be filed by or on behalf of the Company and its Subsidiaries have been duly filed on a timely basis and such Tax Returns were, when filed, true, complete and correct. The Company and each of its Subsidiaries have, within the time and in the manner prescribed by Law, paid all Taxes that are due and payable. The Company and its Subsidiaries have withheld and paid over all Taxes required to have been withheld and paid over, and complied with all information reporting and backup withholding in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. There are no liens on any of the assets of Clearwire or any of the Company and its Subsidiaries is subject with respect to any material Encumbrance for Taxes, except for other than liens for Taxes not yet due and payable. None of the Company or any of its Subsidiaries has been at any time a member of an affiliated group of corporations filing consolidated, combined or unitary income or franchise Tax Returns. No Governmental or Regulatory Authority in any jurisdiction where the Company or any of its Subsidiaries does not file a particular Tax Return has made a claim in writing that such corporation is or may be subjected to taxation by that jurisdiction.
(b) All material Tax Returns required to be filed by Clearwire or any The Company’s liabilities for unpaid Taxes for all periods through the Statement Date have been properly accrued on the Company Financials in accordance with GAAP. No liability for Taxes of the Company and its Subsidiaries have has been timely filed, incurred or material amount of taxable income has been realized (or prior to and all those Tax Returns are true, correct and complete including the Closing Date will be incurred or realized) after the Statement Date other than either in all material respectsthe ordinary course of business or as relates solely to Excluded Taxes.
(c) All material Taxes owed The Company has provided to Acquirer true and complete copies of (i) all income tax audit reports, statements of deficiencies, closing or other agreements received by Clearwire or on behalf of the Company and its Subsidiaries relating to Taxes, and (whether ii) all federal, state and foreign income or franchise Tax Returns and state sales and use Tax Returns for or including the Company and its Subsidiaries since the Company’s and its Subsidiaries’ inception.
(d) No audit of the Tax Returns of or including the Company and its Subsidiaries by a government or taxing authority is in process, threatened in writing or, to the Knowledge of the Company, pending (either in writing or orally, formally or informally). No deficiencies exist or have been asserted in writing with respect to Taxes of the Company and its Subsidiaries, and the Company and its Subsidiaries have not shown on received written notice that it has not filed a Tax Return or paid Taxes required to be filed or paid. Neither the Company nor any of its Subsidiaries is a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or threatened in writing against the Company, any of its Subsidiaries or any of their respective assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Tax Returns of the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to or bound by (nor will the Company or any of its Subsidiaries, prior to the Closing, become a party to or become bound by) any Tax Return) have been paidindemnity, except for those Taxes being contested in good faith Tax sharing or Tax allocation agreement or arrangement, and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its Subsidiaries has incurred liability or obligation to any Person as a result of, or pursuant to, any such agreement, contract or arrangement. During the two-year period ending with the Closing Date, neither the Company nor any of its Subsidiaries has been a distributing corporation or a controlled corporation in a transaction described in section 355(a) of the Code and intended to qualify for tax-free treatment thereunder.
(f) None of the Company or any of its Subsidiaries has any liability for Taxes of any other Person under Income Tax Regulations section 1.1502-6 (whether or not dueany similar provision of state, local or foreign Tax Law) for material Taxes since the date as a transferee or successor, by contract or otherwise.
(g) None of the most recent balance sheet included Company or any of its Subsidiaries has (i) received or been the subject of a Tax Ruling or a request for a Tax Ruling, (ii) entered into a Closing Agreement with any Governmental or Regulatory Authority that would have a continuing effect or consequence after the Closing Date, (iii) changed any financial or Tax accounting methods, policies or practices, except as required by a change in GAAP or applicable Law, (iv) made, revoked or amended any material Tax election, or (v) filed any amended Tax Return or claim for refund.
(h) None of the Clearwire Financial Statements Company or any of its Subsidiaries is required to include in income any adjustment pursuant to section 481 of the Code (or any corresponding or similar provision of state, local, or foreign Tax Law) by reason of a voluntary change in accounting method initiated by the Company or any of its Subsidiaries, and no Governmental or Regulatory Authority has proposed in writing any such change in accounting method.
(i) None of the Company or 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 period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a period ending on or prior to the Closing Date, (ii) Closing Agreement entered into on or prior to the Closing Date, (iii) intercompany transactions or any excess loss account described in Income Tax Regulations under section 1502 of the Code (or any corresponding or similar provision of state, local, or foreign Tax Law) occurring or arising on or prior to the Closing Date, (iv) installment sale or open transaction disposition made on or prior to the Closing Date, or (v) prepaid amount received on or prior to the Closing Date, other than any prepaid amounts received in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(gj) Neither Clearwire the Company nor any of its Subsidiaries has entered intonor has had a permanent establishment in any country, other than its jurisdiction of incorporation or otherwise participated organization, which would subject it to taxation in such country.
(directly or indirectlyk) inEach of the Company and its Subsidiaries is in compliance with any applicable transfer pricing requirements, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 including but not limited to section 482 of the Code and the Treasury Regulations thereunder and corresponding or has received a written opinion from a tax advisor that was intended similar provisions of state, local or foreign Tax law, as they apply to provide protection against a tax penaltytransfer pricing between controlled entities.
(hl) Except as set forth in Section 6.7(h) of Neither the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or Company nor any of its Subsidiaries is, has been or will have been a controlled foreign corporation within the meaning of income or gain under Section 1502 section 957 of the Code or a passive foreign investment company within the meaning of sections 1291-1297 of the Code at any time during the period beginning with the start of its taxable year that includes the Closing Date and ending on the Regulations thereunder (or Closing Date, both dates inclusive; provided, that for purposes of determining passive foreign investment company status, the effects of any comparable provision under state or local income Tax law) or, election made by Acquirer with respect to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) Merger under section 338 of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerCode shall be ignored.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None 8.15.1 Each of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for TaxesTarget Entities has duly, except for liens for Taxes not yet due properly and payable.
(b) All material timely filed all Tax Returns that it was required by applicable tax Law to be filed by Clearwire file on or any of its Subsidiaries have been timely filed, and all those prior to the Completion Date. All such Tax Returns are true, were correct and complete in all material respects.
(c) 8.15.2 All material Taxes owed by Clearwire and its Subsidiaries (whether or on behalf of the Target Entities under applicable tax laws in relation to any transaction other than the transaction consummated by this Agreement, together with all Taxes not shown yet due but accrued in respect of a taxable period ending on any Tax Return) or before the Completion Date, have been paid, except for those Taxes being contested timely paid or have been subject to a provision (estimated in good faith and for which adequate reserves have been established only to the extent such Tax was relating or attributable to the period ending on or prior to the Accounts Date) in Clearwire’s Financial Statements. the Accounts.
8.15.3 Except for Taxes tax audits, inquiries or investigations by any Tax Authority notified to the Target Entities after the date hereof but prior to the Completion Date, as notified in writing to the Purchaser prior to the Completion Date, the Target Entities are not subject of any ongoing tax audit, inquiry or investigations by any Tax Authority against the Target Entities and the Target Entities have not received any notice of reassessment nor have they otherwise been informed in writing by any Tax Authority of its intention to carry out any reassessment.
8.15.4 The Company is the parent company of a tax consolidated group validly constituted in accordance with provisions of Articles 223 A and sub. of the Xxxxxx Xxxxxxx Tax Code as from 1 January 2010 (the “French Tax Group”). ECTEI, IFG, LIUF Immobilier and Prepatech SARL are members of the French Tax Group since 1 January 2010, ESCE and CIECE joined the French Tax Group as from 1 January 2013.
8.15.5 None of the Target Entities benefits or has benefited from any Tax derogatory provision, favourable Tax regime or exemption from Tax, any ruling or formal position taken by a Governmental Authority providing for a derogatory Tax provision, roll-over relief or Tax exemption, that may arise solely could be denied or jeopardized because conditions thereto are not fulfilled or will, as a result of actions or the transactions following the Execution Date permitted by contemplated in this Agreement, neither Clearwire nor no longer be fulfilled as a result of a breach of any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since holding period undertakings previously made by the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessSeller.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there 8.15.6 Each Target Entity has adequately prepared and maintained all records and documentation that it is no currently pending audit or administrative or judicial proceeding with respect required by Tax Law to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesmaintain.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Share Purchase Agreement (Laureate Education, Inc.)
Tax. (a) None of the assets of Clearwire (i) Seller and its Affiliates have filed (or any of its Subsidiaries is subject have caused to any material Encumbrance for Taxes, except for liens for Taxes not yet be filed) when due and payable.
(btaking into account all permitted extensions) All all material Tax Returns required to be filed with respect to the Purchased Assets and Assumed Liabilities and paid (or caused to be paid) in full all material Taxes required to be paid with respect to the Purchased Assets and Assumed Liabilities; and (ii) such Tax Returns were true, complete and correct in all material respects and were prepared in the manner required by Clearwire or applicable Laws. Neither Seller nor any of its Subsidiaries Affiliates has received any notice that any material Taxes with respect to the Purchased Assets or Assumed Liabilities are owing that have not been paid.
(b) True, complete and correct copies of all Tax Returns and all schedules thereto filed with respect to the Business, the Purchased Assets and the Assumed Liabilities and copies of all written communications to or from any Taxing Authority with respect to the Business, any Purchased Asset or any Assumed Liability for the past three (3) prior taxable years have been timely filed, and all those Tax Returns are true, correct and complete in all material respectsmade available to Purchaser for inspection.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire Neither Seller nor any of its Subsidiaries Affiliates has incurred extended or waived the application of any liability (whether statute of limitations of any jurisdiction regarding the assessment or not due) for collection of any material Taxes since the date Tax of the most recent balance sheet included in Business or with respect to the Clearwire Financial Statements other than in the ordinary course of businessPurchased Assets or Assumed Liabilities.
(d) Except as disclosed There are no material assessments, levies or Proceedings pending, or to Seller’s Knowledge, threatened, proposed or contemplated, and no written notice of any material Tax deficiency outstanding, or assessed has been received, in Section 6.7(d) of each case, against the Clearwire Disclosure Schedule, there is no currently pending audit Business or administrative or judicial proceeding with respect to Taxes of Clearwire the Purchased Assets or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound Assumed Liabilities by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesAuthority.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of Seller and its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries Affiliates have withheld and paid over to the relevant Taxing Authorities all material Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders member or other third partiesparty of the Business.
(f) There are no Liens for Taxes other than Permitted Liens upon any of the Purchased Assets.
(g) Neither Clearwire nor There are no outstanding extensions or waivers of the statutory period of limitation applicable to any of its Subsidiaries has entered intoclaim for, or otherwise participated (directly the period for the collection or indirectly) inassessment of, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, material Taxes with respect to the Knowledge of Clearwire, any other material items of income Purchased Assets or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Assumed Liabilities.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, filed by SAFE and SAFE SG with the competent Tax Authority and/or Governmental Authority and all those such Tax Returns returns are true, correct and complete in any material respect pursuant to and in accordance with the applicable Laws.
(b) All Taxes which were due under the Tax returns referred to in the preceding paragraph (whether or not shown to be due on any such Tax returns) have been duly and timely paid, deducted or withheld, by SAFE and SAFE SG, or adequate provisions have been created and accounted for in the relevant SAFE Financials. All Taxes which are not yet due and payable but which relate to periods ending on or before the Closing have been fully and adequately provided for in all material respectsrespects in the books and records of SAFE and SAFE SG.
(c) All material SAFE and SAFE SG have deducted, withheld or collected all amounts required to be respectively deducted, withheld or collected by them on account of Taxes owed including all amounts required to be deducted, withheld or collected in respect of amounts deemed to be paid respectively by Clearwire them, and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following remitted all such amounts to the Execution Date permitted appropriate Governmental Entity when required by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessLaw to do so.
(d) Except as disclosed in Section 6.7(d) There are no Encumbrances for Taxes upon the assets or properties of the Clearwire Disclosure ScheduleSAFE or SAFE SG, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes other than Encumbrances created solely by operation of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesLaw.
(e) Clearwire has SAFE and SAFE SG have not been served with any written notice of assessment or other written notices concerning the payment of Taxes, and to the LR Knowledge there are no Knowledge of any proposed audits, examinations, investigations, claims, disputes or other proceedings pending or threatened Tax claims or assessments in writing with respect to Clearwire any Taxes or any Tax returns of its Subsidiaries that, if upheld, would, individually SAFE or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectSAFE SG.
(f) Except All the extraordinary transactions involving SAFE and/or SAFE SG (including, without limitation, any acquisition or sale of interests and/or businesses as disclosed in Section 6.7(fa going concern) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld performed in compliance with Tax Laws and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesall the applicable Taxes have been duly and timely paid.
(g) Neither Clearwire nor any SAFE and SAFE SG are and have been resident for tax purposes solely in their jurisdiction of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code incorporation and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythey do not have permanent establishment in other jurisdictions.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership Any transaction between SAFE Group Companies or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or between any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code LR Group Companies and the Regulations thereunder (SAFE Group Companies or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date SAFE Group Companies and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed their Related Parties have been priced at arm’s length for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)transfer pricing purposes.
Appears in 1 contract
Tax. Seller shall fully indemnify and hold harmless (sxxxx- und klaglos halten) the Target Companies or the Buyer, at the sole discretion of the Buyer, against any and all liabilities, obligations, losses or reasonable expenses (including without limitation reasonable attorney’s fees) arising out of or in connection with any breach of the below until the Closing Date:
(a) None All Tax Returns of the assets of Clearwire or any of its Subsidiaries is subject with respect to any material Encumbrance for TaxesTaxes required to be filed by or with respect to the Target Companies on or before the Closing Date have been duly and timely filed in accordance with all applicable laws taking into consideration all permitted time extensions. All items required to be included in each such Tax Return have been so included and all information provided in each such Tax Return is true, except for liens for Taxes not yet due correct and payablecomplete as at the date thereof.
(b) All material Tax Returns required to be filed by Clearwire transactions involving any Target Company and Seller or any Affiliates of its Subsidiaries the Seller until the Closing Date have been timely filed, taken place on an arm’s length basis in accordance with transfer pricing legislation and all those Tax Returns are true, correct and complete in all material respectsregulations.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether due on or not shown on any Tax Return) prior to the Closing Date have been paidtimely paid in full by the Target Companies. Further, except the Target Companies have for those periods until Closing Date accrued for or accounted for as liabilities, and made deductions and retentions in respect of, Taxes being contested as required under applicable Tax and accounting laws. Tax receivables in good faith and the 2012 Accounts (e.g. input value added tax receivables) are not overstated. Tax assets shown in the 2012 Accounts or in Tax Returns for which adequate reserves have been such period of any Target Company were established in Clearwire’s Financial Statements. Except for Taxes accordance with the law and until the Closing Date no action was taken or will be taken that may arise solely as result might limit the use of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businesssuch Tax assets.
(d) Except as disclosed in Section 6.7(d) As of the Clearwire Disclosure ScheduleClosing Date no claim, there is no currently pending audit assessment, deficiency or administrative or judicial proceeding adjustment has been asserted against the Target Companies with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity Return, and there are no Tax related investigations, audits, actions, proceedings, investigations, claims or Tax sharing agreement with any personassessments pending, proposed or (ii) has entered into any waivers threatened against or extensions of the statute of limitations with respect to material Taxesthe Target Companies imposed or initiated by a tax authority.
(e) Clearwire has For periods until but excluding the Closing Date no Knowledge of Target Company will be subject to any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatpayment arising out of, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments or under any agreement relating to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that group (Steuergruppe) to which it was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result party in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of past, in particular the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo tax group agreement disclosed in the LLC Contribution)Virtual Data Room.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None 6.1 The Accounts make full provision for all Taxation for which AES was then or thereafter became or may hereafter become liable or accountable in respect of or by reference to any income, profit, receipt, gain transaction, agreement, distribution or event which was earned, accrued, received, realised, entered into, paid, made or accrued on or before the assets Last Accounting Date and proper provision was made therein for deferred liablities to Taxation in accordance with generally accepted accounting principles and AES has promptly paid or fully provided in its books of Clearwire account for all Taxation for which it has or may hereafter become liable or accountable in the period from the Last Accounting Date to the date hereof.
6.2 Save as provided for in the Accounts there is no liability for Taxation which would arise on AES ceasing to trade or on its ceasing to use or occupy any asset for the purposes of its Subsidiaries is subject trade or on its disposing of any asset at its book value as shown in the Accounts or which might arise in the event of any other person failing to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on pay any Tax Returncharged, assessed or payable by him (including any liability which might arise as a combined result of two or more such events) have been paid, except for those Taxes being contested in good faith and for but excluding any liability which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may would arise solely as a result of actions the realisation of trading stock or transactions following the Execution Date permitted work in progress by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than AES in the ordinary course of businessits business and no material changes have occurred since the Last Accounting Date which might result in any such liability.
6.3 AES is not aware of any circumstance which will or may, whether by lapse of time or the issue of any notice of assessment or otherwise, give rise to any dispute with any Tax Authority in relation to its liability or accountability for Taxation, any claim made by it, any relief, deduction, or allowance afforded to it, or in relation to the status or character of AES (dwhether as to its status as an unquoted trading private company or as a member of any group) Except as disclosed in Section 6.7(d) under or for the purpose of any provision of any legislation relating to Taxation.
6.4 Since the Clearwire Disclosure Schedule, there Last Accounting Date no further liability or contingent liability for Taxation on AES has arisen or is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party likely to or bound will arise otherwise than as a result of transactions (not including distributions) entered into by AES in the ordinary course of trading after the Last Accounting Date.
6.5 AES is not liable and has not since the Last Accounting Date been liable to pay any interest, penalty, fine or sum of a similar nature in respect of Taxation.
6.6 AES has duly complied with all requirements imposed on it by any material closing agreementlegislation relating to Taxation and in particular has properly kept all records and documents so required to be kept, offer in compromisehas properly and punctually made all returns and provided full and complete information to the Inland Revenue, gain recognition agreement or Customs and Excise and any other agreement with any Taxing Authority body concerned as so required, has paid all Taxation charged, assessed, levied or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing payable in accordance with Sections 10.1(b)(iv)(F) applicable legislation as and when it became due and has deducted Tax from all payments where the law requires such deduction and accounted to the Inland Revenue or 10.1(b)(iv)(H) of this Agreement, deemed other fiscal body for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax so deducted.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Waterlink Inc)
Tax. (a) None SPAC: (i) has filed (taking into account any extension of the assets of Clearwire or any of its Subsidiaries is subject time within which to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(bfile) All all material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such filed Tax Returns are true, correct complete and complete accurate in all material respects.
; (cii) All has timely paid all material Taxes owed by Clearwire and its Subsidiaries (whether or not shown as due) on such filed Tax Returns and any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for other material Taxes that may arise solely as result SPAC is otherwise obligated to pay (taking into account any extension of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability time to pay such Taxes); (whether or not dueiii) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or all material Tax Returns filed by it, has not waived any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency; and (iv) does not have any deficiency, audit, examination, investigation or other proceeding in respect of material Taxes or Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for assessments remains open. All material Taxes of SPAC which are not yet due and payable have been (A) for periods covered by the SPAC Financial Statements, adequately accrued and reserved on the SPAC Financial Statements in accordance with GAAP and (B) for periods not covered by the SPAC Financial Statements, accrued on the books and records of SPAC, in each case as of the date of this Agreement.
(b) SPAC is not a party to, is not bound by and does not have any obligation under any Tax sharing agreement, Tax indemnification agreement, Tax allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or ceding of credits or losses), and does not have any potential liability or obligation to any Person as a result of or pursuant to any such agreement, contract, arrangement or commitment other than an agreement, contract, arrangement or commitment entered into in the Ordinary Course the primary purpose of which does not relate to Taxes.
(ec) Clearwire SPAC has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities appropriate taxing authority all material Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany current or former employee, independent contractorscontractor, creditorscreditor, shareholders shareholder or other third partiesperson and has complied in all material respects with all applicable Laws, rules and regulations relating to the withholding and remittance and related reporting requirements with respect to such Taxes.
(d) SPAC has not been a member of an affiliated, consolidated, combined or unitary group for U.S. federal, state, local or non-U.S. Tax purposes.
(e) SPAC does not have a request for a material ruling in respect of Taxes pending with any taxing authority.
(f) There are no material Tax liens upon any assets of SPAC except for Permitted Liens.
(g) Neither Clearwire nor any of its Subsidiaries SPAC has entered into, or otherwise participated not: (directly or indirectlyi) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, received written notice from a non-U.S. taxing authority that it has a permanent establishment (within the meaning of Sections 6011, 6111 an applicable Tax treaty) or 6112 otherwise has an office or fixed place of business in a country other than the Code and the Treasury Regulations thereunder country in which it is organized or has (ii) received a written opinion notice from a tax advisor jurisdiction where it does not file Tax Returns that was intended it is subject to provide protection against Tax in that jurisdiction. SPAC is not subject to Tax in any country other than its country of incorporation, organization or formation or by virtue of having employees, a tax penaltypermanent establishment, other place of business or similar presence in that country.
(h) Except as set forth SPAC has not participated in Section 6.7(ha “reportable transaction” within the meaning of either subsection 237.3(1) of the Clearwire Disclosure Schedule, each Subsidiary Tax Act or a “listed transaction” within the meaning of Clearwire is either Treasury Regulation 1.6011-4(b)(2) (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any corresponding or similar provision of its Affiliates to treat NewCo LLC state, local or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(hnon-U.S. Law).
(i) Except as set forth in Section 6.7(i) SPAC has not taken or agreed to take any action, nor does it intend to or plan to take any action, or have any Knowledge of any fact or circumstance, that could reasonably be expected to prevent the Clearwire Disclosure ScheduleTransactions from qualifying for the Intended Tax Treatment; provided, that the Merger and other transactions contemplated foregoing representation will not prevent SPAC from taking any actions required by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Ancillary Agreement.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Business Combination Agreement (Plum Acquisition Corp. III)
Tax. (ai) None of the assets of Clearwire or any Parentco and each of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet has prepared and filed when due and payable.
(b) All material with each relevant Governmental Body all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those on their behalf. All such Tax Returns are true, correct and complete in all relevant respects, and no material respectsfact has been omitted therefrom.
(cii) All material Taxes owed by Clearwire Parentco and each of its Subsidiaries (has paid in full and when due all Taxes, including instalments or prepayments of Taxes, required to be paid by it whether or not shown on any Tax ReturnReturn or assessed or reassessed by any relevant Governmental Body, and has paid all assessments and reassessments it has received in respect of such Taxes.
(iii) The Financial Statements contain adequate provision in accordance with GAAP for all Taxes payable by Parentco and each of its Subsidiaries in respect of each period covered thereby and all prior periods, whether or not assessed and whether or not shown to be due on any Tax Returns.
(iv) No deficiencies or assessments or reassessments for any Taxes have been paidproposed, except for those Taxes being contested asserted or assessed in good faith writing by any Governmental Body against Parentco or any Subsidiary that are still pending. There are no matters (including any Tax Return filed by Parentco or any Subsidiary) under discussion, audit or appeal with or by any Governmental Body, and for which adequate reserves have been established there are no proceedings, claims, demands, investigations, or actions now pending or, to Parentco’s knowledge, threatened against any of Parentco or any Subsidiary in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any respect to Taxes.
(v) Parentco and each of its Subsidiaries has incurred duly and timely withheld and collected all amounts required by Applicable Law to be withheld or collected by it on account of Taxes (including Taxes and other amounts required to be withheld by it in respect of any amount paid or credited by it to or for the account or benefit of any Person, including any employee, officer or director and any Person not resident in Canada for purposes of the Tax Act) and has duly remitted to the appropriate Governmental Body within the time prescribed under any Applicable Law all such amounts and other amounts required to be remitted by it.
(vi) There are no outstanding agreements, arrangements, waivers or objections extending the statutory period or providing for an extension of time with respect to the assessment or reassessment of Taxes or the filing of any Tax Return by, or any payment of Taxes by, Parentco or any of its Subsidiaries, nor is there any outstanding request for any such agreement, waiver, objection or arrangement. Neither Parentco nor any Subsidiary has made any elections, designations or similar filings with respect to Taxes or entered into any agreement in respect of Taxes or Tax Returns that have an effect for any period ending after the Effective Date and which have not been disclosed to Spinco. Neither Parentco nor any Subsidiary has requested, received or entered into any advance Tax rulings or advance pricing agreements from or with any Governmental Body.
(vii) Neither Parentco nor any Subsidiary is a party to, bound by, or has any obligation under, any Tax allocation or sharing agreement or similar contract or arrangement or any agreement that obligates it to make any payment computed by reference to the Taxes, taxable income or taxable losses of any other Person. Neither Parentco nor any Subsidiary has acquired property from any Person in circumstances where it became liable for any Taxes of such Person. Neither Parentco nor any Subsidiary has entered into any agreement with, or provided any undertaking to, any Person pursuant to which it has assumed liability for the payment of Taxes owing by such Person.
(whether viii) No claim has ever been made by a Governmental Body in a jurisdiction where Parentco or any Subsidiary does not duefile Tax Returns that it is or may be subject to the imposition of any Tax by, or required to file Tax Returns in, that jurisdiction.
(ix) The terms and conditions made or imposed in respect of every transaction (or series of transactions), other than the interest free loans made from time to time to a Subsidiary to fund business operations, between Parentco or any Subsidiary and any Person that is not dealing at arm’s length with such entity, for purposes of the Tax Act or any other Applicable Law, do not differ from those that would have been made between persons dealing at arm’s length for purposes of the Tax Act. Contemporaneous documentation substantiating the transfer pricing practices and methodology has been executed and maintained.
(x) Neither Parentco nor any Subsidiary has claimed any reserves (other than an allowance for doubtful accounts) for material Taxes since purposes of the Tax Act (or any other Applicable Law) for the most recent Tax or fiscal period ending prior to the date of this Agreement or for any Tax period ending as a result of the completion of the transactions contemplated in this Agreement.
(xi) Since the date of the most recent balance sheet included Financial Statements, neither Parentco nor any Subsidiary has incurred any liability for Taxes or engaged in the Clearwire Financial Statements any transaction or event that would result in any liability for Taxes, other than in the ordinary course of businessOrdinary Course.
(dxii) Except as disclosed in Section 6.7(d) There are no circumstances which exist and are expected to result in, or have existed and resulted in, the application of any of Sections 17, 79, 79.1 or 80 to 80.04, inclusive, of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder Act (or any comparable similar provision under state or local income Tax lawany Applicable Law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint Parentco or any Subsidiary. Neither Parentco nor any Subsidiary has made any payment or is obligated to make any payment that may not be deductible by virtue of its Subsidiaries Section 67 of the Tax Act (including or any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contributionsimilar provision under any Applicable Law).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Arrangement Agreement
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for TaxesAll Tax (as defined below) returns, except for liens for Taxes not yet due statements, reports, declarations and payable.
other forms and documents (bincluding without limitation estimated Tax returns and reports and information returns and reports) All material Tax Returns required to be filed with any Tax Authority (as defined below) with respect to any Taxable (as defined below) period ending on or before the Closing, by Clearwire or on behalf of the Seller, Quadrem Group or any of its Subsidiaries Quadrem Subsidiary (collectively, “Tax Returns” and individually, a “Tax Return”), have been timely filedor will be completed and filed when due (including any extensions of such due date). Except to the extent that a reserve for Taxes has been established on the Reference Balance Sheet, and all those such Tax Returns are true, complete and correct and complete were prepared in substantial compliance with all material respects.
(c) All material applicable Laws. The Quadrem Group and each Quadrem Subsidiary has paid all Taxes owed by Clearwire due and its Subsidiaries owing (whether or not shown on any Tax Return) have been paidfor all periods through the date of the Reference Balance Sheet, except to the extent reserves for those Taxes being contested in good faith and for which adequate reserves have been established on the Reference Balance Sheet. The Interim Financial Statements (i) fully accrue all actual and contingent liabilities for Taxes (as defined below) with respect to all periods through the date of the Reference Balance Sheet and neither the Quadrem Group nor any Quadrem Subsidiary has, nor will, incur any Tax liability in Clearwire’s excess of the amount reflected (excluding any amount thereof that reflects timing differences between the recognition of income for purposes of U.S. GAAP and for Tax purposes) on the Reference Balance Sheet included in the Interim Financial Statements with respect to such periods, and (ii) properly accrue in accordance with U.S. GAAP all liabilities for Taxes payable after the date of the Reference Balance Sheet, with respect to all transactions and events occurring on or prior to such date. Neither the Quadrem Group nor any Quadrem Subsidiary will, as a result of the transactions contemplated herein, become liable for any Tax not adequately reserved against on the Interim Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following All information set forth in the Execution Date permitted by this Agreementnotes to the Interim Financial Statements relating to Tax matters is true, neither Clearwire complete and accurate in all respects. Neither the Quadrem Group nor any of its Subsidiaries Quadrem Subsidiary has incurred any Tax liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements Reference Balance Sheet other than in the ordinary course of business, and the Quadrem Group and each Quadrem Subsidiary has made adequate provisions for all Taxes since that date in accordance with U.S. GAAP on at least a quarterly basis.
(db) The Quadrem Group and each Quadrem Subsidiary has withheld and paid to the applicable financial institution or Tax Authority all amounts required to be withheld. Except as disclosed set forth in Section 6.7(dDisclosure Schedule 3.15(b) attached, to the best knowledge of the Clearwire Disclosure ScheduleSeller, no Tax Returns filed with respect to Taxable years through the Taxable year ended 2009 in the case of the United States, have been examined and closed. The Quadrem Group (or any member of any affiliated or combined group of which the Quadrem Group has been a member) has not granted any extension or waiver of the limitation period applicable to any Tax Return that is still in effect and there is no claim, audit, action, suit, Proceeding, or (to the knowledge of the Seller) investigation now pending, threatened or expected against or with respect to the Quadrem Group in respect of any Tax or assessment. No notice of deficiency or similar document of any Tax Authority has been received by the Seller, the Quadrem Group or any Quadrem Subsidiary, and there are no liabilities for Taxes (including liabilities for interest, additions to Tax and penalties thereon and related expenses) with respect to the issues that have been raised (and are currently pending audit pending) by any Tax Authority that could, if determined adversely to the Quadrem Group or administrative any Quadrem Subsidiary, adversely affect the liability of the Quadrem Group or judicial proceeding the applicable Quadrem Subsidiary for Taxes. Except as set forth in Disclosure Schedule 3.15(b) attached, no claim has been made by a Tax Authority in a jurisdiction where the Quadrem Group or any Quadrem Subsidiary does not file income Tax Returns that the Quadrem Group or any Quadrem Subsidiary is or may be subject to income taxation by that jurisdiction. There are no liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Quadrem Group or any Quadrem Subsidiary. All elections with respect to the Quadrem Group’s and each Quadrem Subsidiary’s Taxes made during the fiscal years ending December 31, 2007, 2008 and 2009 are reflected on the Quadrem Group’s or applicable Quadrem Subsidiary’s Tax Returns for such periods, copies of which have been provided to Buyer. After the date of this Agreement, no election with respect to Taxes will be made by Seller without the prior written consent of Clearwire Buyer, which consent will not be unreasonably withheld or delayed. The Quadrem Group has previously provided or made available to Buyer true and correct copies of all income, franchise, and sales Tax Returns, and, as reasonably requested by Buyer, prior to or following the date hereof, presently existing information statements and reports.
(c) Neither the Quadrem Group nor any Quadrem Subsidiary or any of its Subsidiaries. Except as disclosed in Section 6.7(d) predecessor of the Clearwire Disclosure ScheduleQuadrem Group or any Quadrem Subsidiary has ever been a member of an affiliated group of corporations, neither Clearwire within the meaning of Section 1504 of the Code. Neither the Quadrem Group nor any of its Subsidiaries (i) Quadrem Subsidiary is a party to or bound by any material closing agreementTax indemnity, offer in compromiseTax sharing or Tax allocation agreement (whether written or unwritten or arising under operation of federal Law as a result of being a member of a group filing consolidated Tax Returns, gain recognition agreement under operation of certain state Laws as a result of being a member of a unitary group, or under comparable Laws of other states or foreign jurisdictions) nor does the Quadrem Group or any other agreement with Quadrem Subsidiary have any Taxing Authority liability or potential liability to another party under such agreement. Neither the Quadrem Group nor any Quadrem Subsidiary has made or will make a deemed dividend election under Treas. Reg. §1.1502-32(f)(2) or a consent dividend election under Section 565 of the Code. Neither the Quadrem Group nor any Quadrem Subsidiary has ever been a party (either as a distributing corporation, a distributed corporation or otherwise) to any transaction intended to qualify under Section 355 or Section 361 of the Code or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions corresponding provision of the statute of limitations with respect to material Taxesstate Law.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(hd) Except as set forth in Section 6.7(h3.15(d) of the Clearwire Seller Disclosure Schedule, the Quadrem Group and each Quadrem Subsidiary is in full compliance with all the terms and conditions of Clearwire is either (x) treated as any Tax exemption or other Tax-sharing agreement or order of a partnership foreign government, including without limitation the Dutch tax ruling referenced in the Seller Disclosure Schedule, and the consummation of the Acquisition will not have any adverse effect on the continued validity and effectiveness of any such Tax exemption or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposesother Tax-sharing agreement or order. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i3.15(d) of the Clearwire Seller Disclosure Schedule, neither the Merger Quadrem Group nor any Quadrem Subsidiary is currently and never has been subject to the reporting requirements of Section 6038A of the Code. The Quadrem Group and the Quadrem Subsidiaries have not participated in (and will not participate in) an international boycott within the meaning of Section 999 of the Code. Section 3.15(d) of the Seller Disclosure Schedule contains a true and complete list of (i) each country in which the Quadrem Group or any Quadrem Subsidiary has, or previously had, a permanent establishment, as defined in any applicable Tax treaty or convention between the United States of America and such foreign country; (ii) each country within which the Quadrem Group or any Quadrem Subsidiary has engaged in a trade or business.
(e) None of the assets of the Quadrem Group or any Quadrem Subsidiary is property that the Quadrem Group or Quadrem Subsidiary is required to treat as being owned by any other person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Code. None of the assets of the Quadrem Group or any Quadrem Subsidiary directly or indirectly secures any debt the interest on which is Tax exempt under Section 103(a) of the Code. None of the assets of the Quadrem Group or any Quadrem Subsidiary is “tax-exempt use property” within the meaning of Section 168(h) of the Code. Neither the Quadrem Group nor any Quadrem Subsidiary has ever elected to be treated as an S-corporation under Section 1362 of the Code or any corresponding provision of federal or state Law.
(f) Neither the Quadrem Group nor any Quadrem Subsidiary is, nor has been, a United States real property holding corporation (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g) The Quadrem Group and each Quadrem Subsidiary has disclosed on its 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. Neither the Quadrem Group nor any Quadrem Subsidiary is a party to any “listed transaction” within the meaning of Section 6707A of the Code or Section 1.6011-4 of the Treasury Regulations.
(h) Neither the Quadrem Group nor any Quadrem Subsidiary 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 Closing Date as a result of any: (i) change in method of accounting, other than by reason of the transactions contemplated herein, for Tax purposes for a taxable period ending on or prior to the Closing Date (including, without limitation, by Articles 2, 3 and 4 reason of this Agreement will not result Section 481 or 203A of the Code); (ii) “closing agreement” as described in Section 7121 of the recognition by NewCo Code (or any corresponding or similar provision of its Subsidiaries of state, local or foreign income Tax law) executed on or gain under prior to the Closing Date; (iii) intercompany transaction or excess loss account described in Section 1502 of the Code and the Regulations regulations thereunder (or any comparable corresponding or similar provision under state of state, local or local foreign income Tax law); (iv) or, installment sale or open transaction disposition made on or prior to the Knowledge of Clearwire, any other material items of income Closing Date; or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income v) prepaid amount received on or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo prior to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ariba Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required relating to be filed by Clearwire the Company or any of its Subsidiaries the Acquired Business have been timely filed, and all those . All such Tax Returns are true, correct and complete in all material respects.
(c) . All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) of the Company or related to the Acquired Business have been paid, except timely paid (including installment payments of Taxes). The Company Balance Sheet reflects liabilities and reserves (in accordance with GAAP) for those all Taxes being contested of the Company through the Balance Sheet Date. Section 3.7(a) of the Disclosure Schedule contains a complete and accurate list of all jurisdictions in good faith which Tax Returns are filed by or with respect to the Company and the Acquired Business.
(b) No deficiencies for which adequate reserves any Taxes have been established in Clearwire’s Financial Statements. Except asserted or assessed, or to the Knowledge of Seller, proposed, with respect to the Company or the Acquired Business, and neither Seller nor the Company has executed any waiver of any statute of limitations or any extension of the period for the assessment or collection of any Tax.
(c) The Company has timely withheld and timely paid over to the appropriate Tax authority all Taxes that may arise solely as result of actions it is required to withhold from amounts paid or transactions following the Execution Date permitted by this Agreementowing to any employee, neither Clearwire nor any of its Subsidiaries independent contractor, creditor, or other third party and has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businesscomplied with all reporting obligations with respect to such amounts.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending No audit or administrative or judicial proceeding other examination of any Tax Return with respect to Taxes the Company or the Acquired Business is presently in progress, and neither Seller nor the Company has been notified of Clearwire any request for such an audit or other examination.
(e) The Company has not waived any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to any material Taxes.
(e) Clearwire has no Knowledge Taxes or agreed to any extension of any proposed or threatened Tax claims or assessments time with respect to Clearwire any material Tax assessment or deficiency that has not yet been resolved. No deficiencies for Taxes with respect to the Company or the Acquired Business have been claimed, proposed or assessed by any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse EffectGovernmental Entity.
(f) Except as disclosed in Section 6.7(fThere are no Liens for Taxes (other than for current Taxes not yet due and payable) upon the Interests or the assets of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesCompany.
(g) Neither Clearwire nor No claim has been made or threatened in the past five (5) years by any of its Subsidiaries has entered into, Governmental Entity in a jurisdiction where Tax Returns are not filed that the Company or otherwise participated (directly the Acquired Business is or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor may be subject to taxation in that was intended to provide protection against a tax penaltyjurisdiction.
(h) Except as set forth in Section 6.7(h) The Company has no Liabilities for Taxes of the Clearwire Disclosure Scheduleany other Person by operation of Applicable Law or otherwise, each Subsidiary of Clearwire or is either (x) treated as currently under any contractual obligation to indemnify any Person with respect to Taxes, or is a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire party to any Tax sharing agreement or any of its Affiliates other agreement providing for payments by the Company with respect to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Taxes.
(i) Except Neither the Company nor the Purchaser 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 Closing Date as set forth a result of (i) any change in the Acquired Business’ or Company’s method of accounting for a taxable period ending on or prior to the Closing Date pursuant to Section 6.7(i481(a) of the Clearwire Disclosure ScheduleCode, (ii) any Acquired Business installment sale or open transaction entered into on or prior to the Merger and other transactions contemplated Closing Date, (iii) any prepaid amount received or paid on or prior to the Closing Date by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Company or the Acquired Business or any deferred revenue of its Subsidiaries of income the Company or gain under the Acquired Business, or (iv) any election pursuant to Section 1502 108(i) of the Code and the Regulations thereunder (or any comparable similar provision under state of state, local or local income Tax lawforeign Law) or, made with respect to any taxable period ending on or prior to the Knowledge of Clearwire, any other material items of income Closing Date by the Company or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Acquired Business.
(j) Section 6.7(j) of the Clearwire Disclosure sets forthThe Company has not filed, in all material respectsand does not have pending, the information concerning any limitations on the ability of NewCo ruling requests with any taxing authority, including any request to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Mergerchange any accounting method.
(k) Any liabilities of Clearwire, with Neither the possible exception of any indebtedness issued by Clearwire between Company nor the Execution Date and the Closing Seller has engaged in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute a “qualified liabilitiesreportable transaction,” as defined set forth in Treasury Regulation Section 1.7071.6011‑4(b), or any transaction that is the same as or substantially similar to one of the types of transactions that the Internal Revenue Service has determined to be a Tax avoidance transaction and identified by notice, regulation or other form of published guidance as a “listed transaction,” as set forth in Treasury Regulation Section 1.6011‑4(b)(2). Seller and the Company have disclosed on their Tax Returns all positions taken therein that could give rise to a substantial understatement penalty under Code Section 6662 or any similar provision of other Applicable Law, and are in possession of supporting documentation as may be required under any such provision.
(l) The Company is not a party to any interest rate swap, currency swap, notional principal contract, or similar transaction.
(m) None of the Company’s assets are required to be depreciated under the alternative depreciation system under Section 168(g)(2) of the Code, or are “tax-5(a)(6)(i)(Dexempt use property” within the meaning of Section 168(h) of the Code.
(n) The Seller is a “United States person” as such term is used in Section 1445 of the Code.
(o) Since its formation, the Company has been, and currently is, classified as a corporation, for federal, state, county and local tax purposes; the Company files its own state Taxes and its federal Taxes are consolidated with the Seller’s tax filings.
(p) The Company has at all times complied in all respects with Section 280E of the Code.
(q) The unpaid Taxes of the Company will not exceed the Pre-Closing Taxes included in the Seller Estimated Adjustment Statement.
(r) The Company paid qualified wages to employees during the COVID-19 pandemic and subsequently claimed and received the refundable Employee Retention Tax Credit (“ERTC”). The Company did not receive any Paycheck Protection Program Loans during the COVID-19 pandemic or any other benefits or deferrals made under any COVID-19 Law.
Appears in 1 contract
Tax. (a) None 13.1 AMS04 SPV has, within all relevant time limits, made or caused to be made all proper returns required to be made, and has supplied or caused to be supplied all material information required to be supplied, to any Tax Authority.
13.2 All material amounts of Tax required to be paid or withheld by AMS04 SPV have been duly paid or withheld, and no material penalties, fines, surcharges or interest in relation to Tax have been incurred by AMS04 SPV.
13.3 There is no material dispute or disagreement outstanding nor is any contemplated at the assets date of Clearwire this Agreement with any Tax Authority regarding any liability or potential liability to any Tax in respect of its Subsidiaries AMS04 SPV or that is subject recoverable from AMS04 SPV.
13.4 The amount of Tax chargeable on AMS04 SPV during any accounting period has not, to any material Encumbrance for Taxesextent, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown depended on any concession, agreement or other formal or informal arrangement with any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement Authority or any other agreement with treatment which has been or could be construed as state aid.
13.5 No arrangements have been made under which AMS04 SPV is or could become liable to make any Taxing Authority or material payment to any person in respect of any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) inarrangements, any “listed transaction”joint liability for any Tax, or any reportable transaction liability in respect of Tax which is chargeable directly or primarily against any person other than AMS04 SPV.
13.6 AMS04 SPV is solely resident for Tax purposes in the principal purpose place identified as its jurisdiction of which was tax avoidanceTax residence in Attachment 1 (Basic information about London DivestCo, within Amsterdam DivestCo, Frankfurt DivestCo and AMS04 SPV), and is not subject to Tax in any other jurisdiction by virtue of having a permanent establishment there.
13.7 AMS04 SPV has all the meaning information in its possession and control necessary to calculate its Tax liabilities for periods up to Completion and any future Tax liability of Sections 6011, 6111 or 6112 each member of the Code and the Treasury Regulations thereunder Target Group insofar as it is calculated by reference to any transaction or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyevent occurring on or before Completion.
(h) Except 13.8 A valid and timely Check the Box Election has been made to treat AMS04 SPV as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, single owner for U.S. federal income tax purposes, with effect at least three days prior to the Completion Date.
13.9 AMS04 SPV is a taxable person, is registered for the purposes of VAT and all of its supplies are subject to VAT such that it is a fully taxable person for VAT purposes. No action An option for VATable lease has been taken by Clearwire or any exercised on the AMS04 Site under section 11.1, sub b 5ᵒ, of its Affiliates to treat NewCo LLC or its Subsidiaries the Dutch Value Added Tax Act 1968 (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(cWet op de Omzetbelasting 1968) and this Section 6.7(harticle 6a of the Implementing Decision of the Dutch Value Added Tax Xxx 0000 (Uitvoeringsbeschikking omzetbelasting 1968).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. (a) None of Each Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Company is required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Company are true, correct and complete in all material respects.
(c) . All material Taxes owed (or to be remitted) by Clearwire and its Subsidiaries any Company (whether or not shown on any Tax Return) have been paidpaid to the proper Governmental Body. No claim has been made by any Governmental Body in a jurisdiction where any Company does not file Tax Returns that such Company is or may be subject to the payment, except for collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Companies that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Schedule 4.5 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which any Company has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Taxes being contested in good faith and for which adequate reserves Tax Returns that have been established in Clearwire’s Financial Statements. Except for Taxes audited, (iii) identifies those Tax Returns that may arise solely as result currently are the subject of actions or transactions following the Execution Date permitted by this Agreementaudit, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not dueiv) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding lists all rulings and similar determinations with respect to Taxes of Clearwire requested or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound received by any Company or Seller relating to any Company, (v) identifies those Tax Returns that are due to be filed within 90 days after the date hereof and (vi) contains a complete and accurate description of all material closing agreementelections relating to Taxes that were made by or on behalf of any Company. The Target has delivered or made available to the Buyer true, offer in compromisecorrect and complete copies of all Tax Returns filed by, gain recognition agreement and all examination reports, and statements of deficiencies assessed against or agreed to by, any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of Company during the statute of limitations with respect to material Taxessix-year period ending on the date hereof.
(eb) Clearwire Each Company has no Knowledge of any proposed withheld or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatcollected, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities proper Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, stockholder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(c) There is no basis for any Governmental Body to, and no Seller or director or officer (or employee responsible for Tax matters) of any Company expects any Governmental Body to, assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted by any Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any Seller or Company has Knowledge.
(d) No Company has waived any statute or period of limitations with respect to any Tax or agreed, or been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Company has been requested, granted or currently is in effect.
(e) No Company has filed a consent under Code § 341(f), as in effect prior to the Jobs and Growth Tax Reconciliation Act of 2003, concerning collapsible corporations. No Company has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or Code § 162(m). No Company has been a United States real property holding corporation within the meaning of Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). Each Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Company is a party to any Tax allocation, sharing, reimbursement or similar agreement. No Company has been a member of any “affiliated group” as defined in Code § 1504(a) (or any similar group defined under a similar provision of state, local or foreign Law) filing a consolidated federal, state, local or foreign income Tax Return (other than a group the common parent of which was the Target). No Company has any Liability for Taxes of any Person (other than any Company) under Treasury Regulation § 1.1502-6 (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Company has participated in an international boycott within the meaning of Code § 999. No Company has agreed, or is required to make, any adjustments under Code § 481(a) by reason of a change in method of accounting or otherwise. No asset of any Company (i) is property required to be treated as being owned by another Person pursuant to the provisions of § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Company has been a “distributing company” within the meaning of Code § 355(c)(2) with respect to a transaction described in Code § 355 within the six-year period ending on the date hereof. No Company has made, or is bound by, any election under Code § 197 or 1361.
(f) The unpaid Taxes of the Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Interim Balance Sheet (rather than in any notes thereto) and (ii) will 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 Companies in filing their Tax Returns.
(g) Neither Clearwire nor any of its Subsidiaries has entered intoNo Company has, or otherwise participated (directly or indirectly, participated in any transaction (including, the transactions contemplated by this Agreement) in, any that would constitute (i) a “reportable transaction” or “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707§ 1.6011-5(a)(6)(i)(D)4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(h) The execution and delivery of this Agreement and the performance of the Transactions will not cause the Buyer or any Company to have any Liability for any Tax.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any Brigus and each of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material affiliates has duly and timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Taxes owed by Clearwire Brigus and each of its Subsidiaries (whether and affiliates has paid on a timely basis all Taxes which are due and payable, all assessments and reassessments, and all other Taxes due and payable by them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Brigus. Except Brigus and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Brigus for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Brigus and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire Brigus or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSubsidiaries or affiliates, and neither Clearwire Brigus nor any of its Subsidiaries (i) or affiliates is a party to any action or bound proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Brigus, threatened against Brigus or any of its Subsidiaries or affiliates or any of their respective assets.
(d) No claim has been made by any material closing agreement, offer Governmental Entity in compromise, gain recognition agreement a jurisdiction where Brigus or any other agreement with any Taxing Authority of its Subsidiaries or affiliates does not file Tax Returns that Brigus or any of its Subsidiaries or affiliates is or may be subject to Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesby that jurisdiction.
(e) Clearwire has There are no Knowledge of any proposed or threatened Tax claims or assessments Liens (other than Permitted Encumbrances) with respect to Clearwire Taxes upon any of the assets of Brigus or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectaffiliates.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire Brigus and each of its Subsidiaries have and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and paid over has remitted all such amounts to the relevant Taxing Authorities all Taxes appropriate Governmental Entity when required by Law to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesdo so.
(g) There are no 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 due from Brigus or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Brigus and each of its Subsidiaries and affiliates has made available to Primero true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Clearwire Brigus nor any of its Subsidiaries or affiliates has entered into, or otherwise participated (ever directly or indirectlyindirectly transferred any property to or supplied any services to or acquired any property or services from a Person with whom it was not dealing at arm's length (for the purposes of the Tax Act) infor consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, any “listed transaction”supply or acquisition of the property or services.
(j) There are no circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any reportable transaction the principal purpose of which was tax avoidanceequivalent provision under provincial or foreign Law, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Brigus or any of its Subsidiaries or affiliates. None of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or Brigus nor any of its Subsidiaries (including or affiliates has made, prepared and/or filed any income elections, designations or gain similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Subsidiaries of Sprint Taxes or Tax Returns that become Subsidiaries of NewCo in has effect for any period ending after the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Each of ClearwireBrigus and Brigus SpinCo and Brigus Gold ULC, with 7153945 Canada Inc., and Linear Gold Holdings Corp. is not a non-resident of Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date Tax Act. Each of Brigus’ Subsidiaries (other than Brigus SpinCo, Brigus Gold ULC, 7153945 Canada Inc., and Linear Gold Holdings Corp.) is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (a) None Each member of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Sulliden Group has duly and payable.
(b) All material timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, them for periods prior to the date hereof and all those such Tax Returns are true, correct complete and complete accurate in all material respects.
(cb) All material Each member of the Sulliden Group has paid on a timely basis all Taxes owed which are due and payable, all assessments and reassessments, and all other Taxes due and payable by Clearwire and its Subsidiaries (whether them on or not shown on any Tax Return) before the date hereof, other than those which are being or have been paid, except for those Taxes being contested in good faith and for in respect of which adequate reserves have been established provided in Clearwire’s Financial Statementsthe most recently published consolidated financial statements of Sulliden. Except Sulliden and its Subsidiaries and affiliates have provided adequate accruals in accordance with IFRS in the most recently published consolidated financial statements of Sulliden for any Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any Sulliden and each of its Subsidiaries has incurred any liability (and affiliates for the period covered by such financial statements that have not been paid whether or not due) shown as being due on any Tax Returns. Since such publication date, no material liability in respect of Taxes not reflected in such statements or otherwise provided for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements has been assessed, proposed to be assessed, incurred or accrued, other than in the ordinary course of business.
(dc) Except as disclosed No material deficiencies, litigation, proposed adjustments or matters in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit controversy exist or administrative or judicial proceeding have been asserted with respect to Taxes of Clearwire any member of the Sulliden Group, and no member of the Sulliden Group is a party to any action or proceeding for assessment or collection of Taxes and no such event has been asserted or, to the knowledge of Sulliden, threatened against Sulliden or any of its Subsidiaries. Except as disclosed Subsidiaries or affiliates or any of their respective assets.
(d) No Claim has been made by any Governmental Entity in Section 6.7(da jurisdiction where Sulliden or any of its Subsidiaries or affiliates does not file Tax Returns that Sulliden or any of its Subsidiaries or affiliates is or may be subject to Tax by that jurisdiction.
(e) There are no Encumbrances (other than Permitted Encumbrances) with respect to Taxes upon any of the Clearwire Disclosure Scheduleassets of Sulliden or any of its Subsidiaries or affiliates.
(f) Sulliden and each of its Subsidiaries and affiliates has withheld or collected all amounts required to be withheld or collected by it on account of Taxes and has remitted all such amounts to the appropriate Governmental Entity when required by Law to do so. Sulliden has charged, neither Clearwire collected and remitted on a timely basis all sales, goods and services, value added and other commodity taxes as required under applicable legislation on any sale, supply or delivery made by them.
(g) There are no 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 due from Sulliden or any of its Subsidiaries or affiliates for any taxable period and no request for any such waiver or extension is currently pending.
(h) Sulliden and each of its Subsidiaries and affiliates has made available to Rio Alto true and complete copies of all Tax Returns, examination reports and statements of deficiencies for taxable periods, or transactions consummated, for which the applicable statutory periods of limitations have not expired.
(i) Neither Sulliden nor any of its Subsidiaries (i) is a party or affiliates has ever directly or indirectly transferred any property to or bound by supplied any material closing agreement, offer in compromise, gain recognition agreement services to or acquired any other agreement property or services from a Person with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or whom it was not dealing at arm’s length (ii) has entered into any waivers or extensions for the purposes of the statute Tax Act) for consideration other than consideration equal to the fair market value of limitations with respect to material Taxesthe property or services at the time of the transfer, supply or acquisition of the property or services.
(ej) Clearwire has There are no Knowledge circumstances existing which could result in the application of Section 78 or Sections 80 to 80.04 of the Tax Act, or any proposed equivalent provision under provincial or threatened Tax claims or assessments with respect foreign Law, to Clearwire Sulliden or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) affiliates. No member of the Clearwire Disclosure ScheduleSulliden Group has made, Clearwire and each of its Subsidiaries have withheld and paid over prepared and/or filed any elections, designations or similar filings relating to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or entered into any agreement or other third parties.
(g) Neither Clearwire nor any arrangement in respect of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income Taxes or Tax (“Clearwire Transaction Tax Items”). For Returns that has effect for any period ending after the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerEffective Date.
(k) Any liabilities Each of Clearwire, with Sulliden and SpinCo is not a non-resident of Canada within the possible exception meaning of any indebtedness issued by Clearwire between the Execution Date and Tax Act. Each of Sulliden’s Subsidiaries (other than SpinCo) is a non-resident of Canada within the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) meaning of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)Tax Act.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire with respect to the Transferred Assets or any of its Subsidiaries the Assumed Liabilities have been timely filed, filed and all those such Tax Returns are true, correct accurate and complete in all respects. All material respectsTaxes required to be paid with respect to the Transferred Assets or the Assumed Liabilities (whether or not shown as due on such Tax Returns) have been timely paid in full. Neither Seller is the beneficiary of any extension of time within which to file any Tax Return with respect to the Transferred Assets or the Assumed Liabilities.
(b) No claim has ever been made by a Governmental Authority in a jurisdiction in which either Seller does not file a Tax Return of a particular type that any Seller is or may be subject to Tax of such type by that jurisdiction with respect to the Transferred Assets and the Assumed Liabilities.
(c) All material There are no liens for Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except of the Transferred Assets (other than liens for those Taxes not yet due and payable or being contested in good faith and by appropriate procedures, and, in each case, for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessspecifically established).
(d) Except as disclosed No Proceeding in Section 6.7(d) respect of Taxes is in progress or pending that relates to the Clearwire Disclosure ScheduleTransferred Assets or the Assumed Liabilities, there is and no currently pending audit or administrative or judicial proceeding with respect such Proceeding has been threatened against Sellers in writing (or, to Taxes the Knowledge of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleSellers, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxesotherwise).
(e) Clearwire has no Knowledge of No deficiencies for any proposed Taxes have been proposed, asserted, threatened or threatened Tax claims or assessments assessed against by any Taxing Authority with respect to Clearwire the Transferred Assets or any of its Subsidiaries thatthe Assumed Liabilities that have not been paid, if upheld, would, individually resolved or settled in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectfull.
(f) Except as disclosed in Section 6.7(f) Sellers have complied with all Laws relating to the payment and withholding of the Clearwire Disclosure ScheduleTaxes, Clearwire and each of its Subsidiaries have duly and timely withheld and paid over to the relevant appropriate Taxing Authorities Authority all Taxes amounts required to have been be so withheld and paid under all such Laws, in connection with payments each case, to employees, independent contractors, creditors, shareholders the extent related to the Transferred Assets or other third partiesthe Assumed Liabilities.
(g) Neither Clearwire nor any of its Subsidiaries Sellers have collected all material sales and use taxes required to be collected, and has entered intoremitted such amounts to the appropriate Taxing Authority, or otherwise participated (directly have been furnished properly completed exemption certificates, to the extent relating to the Transferred Assets or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyAssumed Liabilities.
(h) Except as set forth Sellers have complied in Section 6.7(h) of all material respects with all information reporting and record-keeping requirements with respect to the Clearwire Disclosure ScheduleTransferred Assets and the Assumed Liabilities required by any U.S. federal, each Subsidiary of Clearwire is either (x) treated as a partnership state, local or (y) disregarded as an entity separate from its owner, for non-U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Tax Law.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Sellers have no material Liability under any escheat or any of its Subsidiaries of income abandoned or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, unclaimed property laws with respect to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Transferred Assets.
(j) No Seller (or other Person treated as selling assets hereunder) is not a “United States Person” within the meaning of Code Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D7701(a)(30).
Appears in 1 contract
Tax. (a1) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding A representation with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed contained in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party this section shall be deemed to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, be accurate unless an inaccuracy contained therein would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectmaterial adverse effect on CLFC.
(f2) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire CLFC and each of its Subsidiaries has duly and timely filed all Tax Returns required to be filed by it and all such Tax Returns are complete and correct in all material respects. CLFC and each of its Subsidiaries has paid all Taxes which are due and payable by it, other than those which are being contested in good faith and in respect of which adequate reserves have withheld been provided in the most recently published financial statements of CLFC. CLFC's most recently published consolidated financial statements contain adequate provision, in accordance with Canadian generally accepted accounting principles, for Taxes payable in respect of each period covered by such financial statements and paid over all prior periods to the relevant Taxing Authorities all extent such Taxes required to have not been withheld paid, whether or not due and paid in connection with payments to employeeswhether or not shown as being due on any Tax Returns, independent contractorsand, creditorssince the date of such statements, shareholders or other third parties.
(g) Neither Clearwire neither CLFC nor any of its Subsidiaries has entered intoincurred a liability for a material amount of Taxes otherwise than in the ordinary course of business. CLFC and each of its Subsidiaries has made adequate provision, or otherwise participated (directly or indirectly) inin accordance with Canadian generally accepted accounting principles, in its books and records for any “listed transaction”, or amount of Taxes material to CLFC on a consolidated basis and accruing in respect of any reportable transaction accounting period ending after the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyperiod covered by such financial statements.
(h3) Except as set forth in Section 6.7(hThere are no actions, suits, proceedings, investigations, audits or claims made (or, to the knowledge of CLFC, threatened) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo against CLFC or any of its Subsidiaries in respect of income Taxes or gain any matters under Section 1502 discussion with any Regulatory Authority relating to Taxes asserted by any such authority, in each case, which may have a material adverse effect on CLFC, net of provisions in respect thereof in the Code most recent published financial statements of CLFC. There have been no waivers of statutes of limitations or objections to any assessments or reassessments involving Taxes given, filed or requested with respect to CLFC or any of its Subsidiaries except in circumstances where the Taxes under objection have been paid or adequate provision for the payment thereof has been made. All liabilities of CLFC and the Regulations thereunder CLFC Material Subsidiaries for federal and provincial income and capital taxes have been assessed by the Canada Customs and Revenue Agency and, where applicable, Canadian provincial, tax authorities for all fiscal years up to and including the fiscal year ended December 31, 2001.
(or any comparable provision under state or local income Tax law4) or, to the Knowledge None of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint CLFC or any of its Subsidiaries (including i) has made an election to be treated as a "consenting corporation" under subsection 341(f) of the United States Internal Revenue Code of 1986 (the "U.S. Tax Code") or (ii) is a party to any income Tax sharing or gain other similar agreement or arrangement or any Tax indemnification agreement of any nature with any other person (other than in agreements with CLFC or any of its Subsidiaries) pursuant to which CLFC or any of its Subsidiaries has or could have any material liabilities in respect of Sprint that become Subsidiaries Taxes. CLFC has not made an election under subsection 897(i) of NewCo in the LLC Contribution)U.S. Tax Code to be treated as a domestic corporation for purposes of section 897, 1445 and 6039C of the U.S. Tax Code.
(j5) Section 6.7(j) CLFC and each of the Clearwire Disclosure sets forthits Subsidiaries has collected, in withheld and remitted all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes Taxes required to be assumed collected, withheld and remitted by NewCo LLC in connection with it within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)time required by applicable Laws.
Appears in 1 contract
Tax. (a) None of Each Xxxxx Company has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that such Xxxxx Company was required to be have filed. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns each Xxxxx Company are true, correct and complete in all material respects.
(c) . All material Taxes owed (or required to be remitted) by Clearwire and its Subsidiaries any Xxxxx Company (whether or not shown or required to be shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementstimely paid to the appropriate Governmental Body. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor There are no Encumbrances on any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date assets of the most recent balance sheet included Xxxxx Companies that arose in the Clearwire Financial Statements other than in the ordinary course of businessconnection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax.
(db) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleEach Xxxxx Company has withheld or collected, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and timely paid over to the relevant Taxing Authorities appropriate Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, stockholder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(gc) Neither Clearwire nor The unpaid Taxes of the Xxxxx Companies (i) did not, as of the Interim Balance Sheet Date, exceed the reserve for Liability for Taxes (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of its Subsidiaries the Xxxxx Interim Balance Sheet (rather than in any notes thereto) and (ii) will 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 Xxxxx Companies in filing their Tax Returns.
(d) There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted (or to be paid, collected or permitted) by any Xxxxx Company either (i) claimed or raised by any Governmental Body in writing or (ii) as to which any Xxxxx Company has entered intoKnowledge. No Xxxxx Company has waived any statute or period of limitations with respect to any Tax or agreed, or otherwise participated been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of any Xxxxx Company has been requested, granted or currently is in effect.
(directly or indirectlye) inNo Xxxxx Company has made any payments, is obligated to make any “listed transaction”payments, or is a party to any reportable transaction agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Section 280G of the principal purpose Code (or any corresponding or similar provision of state, local or foreign Tax law). No Xxxxx Company is a party to any Tax allocation, sharing, reimbursement or similar agreement. No Xxxxx Company has been a member of any Affiliated Group filing a consolidated, combined or unitary Tax Return (other than a group the common parent of which was tax avoidanceXxxxx). No Xxxxx Company has any Liability for Taxes of any Person (other than any Xxxxx Company) under Section 1.1502-6 of the Treasury Regulation (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Xxxxx Company 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 Sections 355 or 361 of the Code. No Xxxxx Company has been a United States real property holding corporation within the meaning of Sections 6011Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. Xxxxx will not be required to deduct and withhold any amount under Section 1445(a) of the Code or otherwise upon the transfer of the Shares to Xxxxx.
(f) Section 4.14 of the Xxxxx Disclosure Letter lists each agreement, 6111 contract, plan or 6112 other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which any Xxxxx Company is a party that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposespromulgated hereunder. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
Each such nonqualified deferred compensation plan (i) Except as set forth complies, and is operated and administered in accordance, with the requirements of Section 6.7(i) 409A of the Clearwire Disclosure ScheduleCode, the Merger Treasury Regulations promulgated hereunder and any other transactions contemplated by Articles 2, 3 IRS guidance issued thereunder and 4 of this Agreement will not result (ii) has been operated and administered in the recognition by NewCo or any of its Subsidiaries of income or gain under good faith compliance with Section 1502 409A of the Code and from the Regulations thereunder (or any comparable provision under state or local income Tax law) orperiod beginning on January 1, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)2005.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Merger Agreement (Lance Inc)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, an Ironman Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Ironman and the Ironman Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Ironman and the Ironman Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Ironman or any of the Ironman Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Ironman or any of the Ironman Subsidiaries in respect of any Tax or Tax asset and neither Ironman nor any of its the Ironman Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Ironman or the Ironman Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Ironman or indirectlyany of the Ironman Subsidiaries.
(vii) in, Neither Ironman nor any Ironman Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Ironman nor any Ironman Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Ironman nor any Ironman Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Ironman or any Ironman Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Ironman or any Ironman Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Ironman or any Ironman Subsidiary does not file a Tax Return that Ironman or such Ironman Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Ironman nor any Ironman Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Ironman or other Ironman Subsidiaries).
(xii) Ironman is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.17(a)(xii) of the Ironman Disclosure Schedule sets forth all elections made by Clearwire Ironman or any of its Affiliates Ironman Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Ironman nor any of the Ironman Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Ironman SEC Documents reflect an adequate reserve for all Taxes payable by Xxxxxxx and the Ironman Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Ironman and each Ironman Subsidiary is a Tax resident only in its jurisdiction of formation. Ironman and each Ironman Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Ironman’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Ironman, no more than 25% of the total number of all issued and outstanding shares of Ironman, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Ironman Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Ironman Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code. Each non-U.S. Ironman Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Ironman nor any Ironman Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code and or (iii) a “surrogate foreign corporation” within the Regulations thereunder meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Ironman Common Stock (i) were issued by Ironman (or any comparable provision under state current or local income Tax lawformer Ironman Affiliate) or, to with an exercise price that was less than the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) fair value of the Clearwire Disclosure sets forthunderlying Ironman Common Stock (or Subsidiary shares) for which the options or warrants were exercisable at the time such options or warrants were issued, in all material respects(ii) are, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireor have ever been, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (Stratasys Ltd.)
Tax. Intas hereby represents that:
(a) None of the assets of Clearwire BPD (i) has properly completed and timely filed (or any of had timely filed on its Subsidiaries is subject to any behalf) all material Encumbrance for Taxesforeign, except for liens for Taxes not yet due federal, state, local and payable.
(b) All material municipal Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, it and all those such Tax Returns are true, correct and complete in all material respects, (ii) has timely paid (or will timely pay) all Taxes required to be paid by it prior to the Closing Date or, in the case of Taxes not yet due and payable, has established in the Company Financial Statements an adequate accrual or reserve in accordance with GAAP for the payment of such Taxes and (iii) has no Liability for Taxes in excess of the amount of accruals or reserves so established in the Company Financial Statements.
(b) BPD has not received any written notification from any Tax Authority regarding any issues that (i) are currently pending before any Tax Authority, or (ii) have been raised by any Tax Authority and not yet finally resolved.
(c) All material No Encumbrances relating to Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested are currently in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor effect against any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date assets of the most recent balance sheet included in the Clearwire Financial Statements BPD other than in the ordinary course of businessPermitted Encumbrances.
(d) Except as disclosed No federal, state, local or foreign audit, examination or contest is presently pending with regard to any Taxes or Tax Returns of BPD and no such audit has been threatened in Section 6.7(dwriting.
(e) There are no outstanding requests, agreements, consents or waivers to extend the statutory period of limitations applicable to the Clearwire Disclosure Scheduleassessment of any Taxes or deficiencies against BPD, there is and no currently pending audit or administrative or judicial proceeding power of attorney granted with respect to any Taxes of Clearwire or any of its Subsidiaries. Except as disclosed is currently in Section 6.7(dforce.
(g) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) BPD is not a party to or bound by any material closing agreementTax sharing, offer in compromiseTax indemnity, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing allocation agreement with nor has any person, Liability or (ii) has entered into potential Liability to another party under any waivers or extensions of the statute of limitations with respect to material Taxessuch agreement.
(eh) Clearwire Since 2004, no claim that has no Knowledge not been resolved has been made against BPD by a Tax Authority in a jurisdiction where the Company does not file Tax Returns that any one of any proposed them is or threatened may be subject to Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effectby that jurisdiction.
(fi) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have BPD has withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders stockholder or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)party.
(j) BPD has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying under Section 6.7(j355 of the Code (i) in the two (2) years prior to the date hereof 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 Clearwire Disclosure sets forth, Code) in all material respects, conjunction with the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the MergerAcquisition.
(k) Any liabilities BPD is not a United States real property holding corporation within the meaning of Clearwire, with Section 897(c)(2) of the possible exception of any indebtedness issued by Clearwire between Code and has not been (and will not be) such a United States real property holding corporation during the Execution Date and five (5) year period ending on the Closing in accordance with Sections 10.1(b)(iv)(FDate.
(l) The Company has made available to Viropro or 10.1(b)(iv)(H) its legal or accounting representative copies of this Agreementall Tax Returns filed for all periods including and after the period ended December 31, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)2004.
Appears in 1 contract
Samples: Acquisition Agreement (Viropro Inc)
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, a Trident Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Trident and the Trident Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Trident and the Trident Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Trident or any of the Trident Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Trident or any of the Trident Subsidiaries in respect of any Tax or Tax asset and neither Trident nor any of its the Trident Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Trident or the Trident Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Trident or indirectlyany of the Trident Subsidiaries.
(vii) in, Neither Trident nor any Trident Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Trident nor any Trident Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Trident nor any Trident Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Trident or any Trident Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Trident or any Trident Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Trident or any Trident Subsidiary does not file a Tax Return that Trident or such Trident Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Trident nor any Trident Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Trident or other Trident Subsidiaries).
(xii) Trident is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.18(a)(xii) of the Trident Disclosure Schedule sets forth all elections made by Clearwire Trident or any of its Affiliates Trident Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Trident nor any of the Trident Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Trident SEC Documents reflect an adequate reserve for all Taxes payable by Trident and the Trident Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Trident and each Trident Subsidiary is a Tax resident only in its jurisdiction of formation. Trident and each Trident Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Trident’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Trident, no more than 25% of the total number of all issued and outstanding shares of Trident, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Trident Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Trident Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code Code. Each non-U.S. Trident Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the Regulations thereunder (meaning of an applicable Tax treaty), branch or taxable presence in any comparable provision under state or local income Tax law) or, to the Knowledge jurisdiction other than its jurisdiction of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)incorporation.
(jc) Section 6.7(j) Neither Trident nor any Trident Subsidiary has taken any action or agreed to take any action, or is aware of the Clearwire Disclosure sets forthany fact or circumstance, in all material respects, the information concerning that could reasonably be expected to cause Sun to be treated as a Tax resident of any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes jurisdiction other than Israel following the Sun Merger.
(kd) Any liabilities None of Clearwire, the outstanding options or warrants (if any) to purchase or acquire Trident Common Stock (i) were issued by Trident (or any current or former Trident Affiliate) with an exercise price that was less than the possible exception fair value of the underlying Trident Common Stock (or any shares of any indebtedness issued by Clearwire between Trident Subsidiary) for which the Execution Date and options or warrants were exercisable at the Closing in accordance with Sections 10.1(b)(iv)(Ftime such options or warrants were issued, (ii) are, or 10.1(b)(iv)(H) of this Agreementhave ever been, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Samples: Merger Agreement (3d Systems Corp)
Tax. (a) None of The Corporation and the assets of Clearwire or any of its Subsidiaries is subject to any have duly and timely filed with the appropriate taxing authorities all material Encumbrance for Taxesfederal, except for liens for Taxes not yet due state and payable.
(b) All local income Tax Returns and all other material Tax Returns required to be filed by Clearwire through the date hereof and will duly and timely file any such returns required to be filed on or any of its Subsidiaries have been timely filed, and all those prior to the Closing. Such Tax Returns and other information filed are true(and, correct to the extent they will be filed prior to the Closing, will be) complete and complete accurate in all material respects. Neither the Corporation nor the Subsidiaries have pending any request for an extension of time within which to file federal, state or local income Tax Returns.
(b) All Taxes of the Corporation and the Subsidiaries in respect of periods (or portions thereof) ending at or prior to the Closing have been paid by the Corporation and the Subsidiaries or such Taxes (other than income Taxes) are shown as due and payable after the Closing on the Financial Statements.
(c) All No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes owed by Clearwire and its or material Tax Returns of the Corporation or the Subsidiaries. Neither the Corporation nor any of the Subsidiaries has received a written notice of any such pending audits or proceedings. There are no outstanding waivers extending the statutory period of limitation relating to the payment of Taxes due from the Corporation or any of the Subsidiaries.
(d) Neither the IRS nor any other taxing authority (whether domestic or not shown on foreign) has asserted in writing, or to the best Knowledge of the Corporation and the Subsidiaries, is threatening to assert, against the Corporation or any Tax Returnof the Subsidiaries any material deficiency or material claim for Taxes in excess of the reserves established therefor.
(e) have been paidThere are no Liens for Taxes upon any property or assets of the Corporation or any of the Subsidiaries, except for those Liens for Taxes not yet due and payable and liens for Taxes that are being contested in good faith by appropriate proceedings as set forth on Schedule 3.20(e) and for as to which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessaccordance with GAAP.
(df) Except as disclosed in Section 6.7(d) of Neither the Clearwire Disclosure Schedule, there is no currently pending audit Corporation nor the Subsidiaries has any obligation under any Tax sharing agreement or administrative or judicial proceeding similar arrangement with any other Person with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any such other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesPerson.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Merger Agreement (American Real Estate Partners L P)
Tax. Unless otherwise agreed, all amounts required to be paid by Seller or Xxxxxxx.xxx under the "Trade Assurance Services Rules" do not include any taxes, duties or other assessments levied or based upon such amounts. Buyer shall be responsible for all such taxes, duties, other assessments due under this Agreement and on all amounts payable hereunder. Taxes will be added to the amounts payable by Buyer to Seller or Xxxxxxx.xxx (aas the case may be) None as applicable and as required by law such that the net amount actually received by Seller or Xxxxxxx.xxx (as the case may be) equals the full amount of the assets payment due hereunder. For greater certainty, Taxes will not be added to the amounts payable by Buyer to Seller or Xxxxxxx.xxx (as the case may be) where Xxxxx has provided with evidence to Seller’s or Xxxxxxx.xxx 's (as the case may be) satisfaction of Clearwire a lawful and applicable exemption for such Taxes. If Buyer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any withholding tax from any amount due to Seller or Xxxxxxx.xxx pursuant to this Agreement, the amount payable by Buyer shall be increased to the extent necessary to ensure that after making such deduction or withholding, Seller or Xxxxxxx.xxx (as the case may be) receives and retains a net sum equal to the sum it would have received but for such deduction or withholding being required. Buyer shall promptly deliver to Seller or Xxxxxxx.xxx (as the case may be) all receipts and/or certificates or other proof evidencing the amounts (if any) paid in respect of any such deduction or withholding. In determining whether and to what extent a deduction or withholding of tax is required by law, the Parties shall cooperate with each other and with Xxxxxxx.xxx and use their reasonable efforts to apply for any exemption, and shall bear their respective cost and expenses in this regard. The Buyer and the Seller shall each be responsible for the direct tax liability imposed on its Subsidiaries own net income, unless otherwise agreed between the Buyer and the Seller. Buyer shall be responsible for the payment of all other taxes including the local levies imposed by any relevant government authority in connection with Xxxxxxx.xxx's provision of any services relating to this Contract. Xxxxx agrees to execute any and all documents with the Seller or such party as the Seller designated for the benefit of Xxxxxxx.xxx to give effect to this provision. If Seller or Buyer under this transaction is subject to any material Encumbrance for Taxestax (such as US State Sales Tax) obligation or liability under any law or regulation of any local or non-local taxation authority of any jurisdiction, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire Seller or any of its Subsidiaries have been timely filedBuyer shall independently assume such obligation or liability, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether Xxxxxxx.xxx does not assume any tax obligation or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions liability attributable to Seller or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”)Buyer. For the avoidance of doubtoverseas warehouse goods, Clearwire Transaction Tax Items Seller shall not include any items of income or gain of Sprint or any of its Subsidiaries be responsible independently for the processing fee and related taxes (including but not limited to customs duties) in relation to the import, customs clearance, logistics of goods. Xxxxxxx.xxx does not assume any income obligation or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in liability for the LLC Contribution).
(j) Section 6.7(j) of responsibility and expense for the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).Seller’s goods. "
Appears in 1 contract
Samples: Trade Assurance Purchase Contract
Tax. 11.1.1 Seller 1 represents by way of an independent guarantee pursuant to section 311 para. 1 of the German Civil Code to the Purchasers (and to their legal successors) that the statements made in this Section 11.1.1 are materially correct and complete as of the date hereof and as of the Closing Date:
a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due The Movianto Companies and payable.
(b) All material their predecessors have timely and duly filed and will timely and duly file all Tax Returns which are required to be filed by Clearwire law or governmental order by them on or before the Closing Date and have complied with all other obligations with respect to any Tax matter;
b) The Tax Returns are all materially complete, true, accurate, not misleading and do not deviate from an officially published view of its Subsidiaries have been timely filedany Tax Authority, and all those such Tax Returns are true, correct and complete in as filed disclose all material respects.Taxes required to be paid for the periods covered thereby;
(c) All material The Movianto Companies and their predecessors have timely paid and withheld and will timely pay and withhold up to the Closing Date all Taxes owed by Clearwire required to be paid or to be withheld when the Taxes were due and its Subsidiaries payable (whether or not such Taxes are shown on any Tax Return);
d) All Tax records to be maintained by any of the Movianto Companies have been paidproperly and completely stored by the respective Movianto Company and are in all respects correct, except complete and up-to-date;
e) There is no dispute existing or threatened between any of the Movianto Companies and any Tax Authority and none of the Movianto Companies are currently subject to any Tax audit, investigation or examination by a Tax Authority and the Movianto Companies have not received any announcement (whether in writing or verbally) of a forthcoming Tax audit, investigation or examination by a Tax Authority;
f) None of the Movianto Companies have extended their respective statutes of limitations period in respect of any Taxes;
g) None of the Movianto Companies has been a real property holding corporation for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. purposes of the US Internal Revenue Code section 897(c)(2);
h) Except for Taxes that may arise solely as result of actions or transactions following Denmark and the Execution Date permitted by this AgreementUK, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date none of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there Movianto Companies has been or is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by a tax sharing or allocation agreement (for the avoidance of doubt, a German Profit-and-Loss-Distribution-Agreement (Ergebnisabführungsvertrag) is not meant to be a tax sharing or allocation agreement in this sense);
i) Except for Denmark, the UK and Germany none of the Movianto Companies is a member of any material affiliated, consolidated, combined or similar group for Tax purposes under which any such entity is jointly and severally liable for the Taxes of other members of such group by law, contract or otherwise;
j) None of the Movianto Companies will be required to include any item of income or exclude any item of deduction from taxable income for any post Effective Date period as a result of (i) changes in methods of accounting implemented by the Seller, or implemented by a Movianto Company before the Closing Date, (ii) a closing agreement, offer in compromise, gain recognition agreement or any other settlement agreement with any Taxing Authority or executed prior to the Closing Date, (iii) any Tax indemnity or Tax sharing agreement with any person, or (ii) has intercompany transactions entered into before the Closing Date, (iv) any waivers instalment of open transactions occurring prior to the Closing Date, and (v) any prepaid amount received on or extensions prior to the Closing Date on the Closing Date;
k) There are no facts or other circumstances existing or having arisen up to the Closing Date which have or may have led to an invalidity, cancellation or removal of a binding ruling (verbindliche Auskunft) of a Tax Authority or a similar measure (clearance) of any non-German Tax Authority granted to any of the statute Movianto Companies;
l) None of limitations with respect the Movianto Companies are subject to material Taxes.an increase of corporate income tax (Körperschaftsteuererhöhungsbetrag) resulting from the former imputation tax system pursuant to section 38 German Corporate Income Tax Act (KStG) or are or will be subject to any similar non-German taxation;
(em) Clearwire has no Knowledge None of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to Movianto Companies have a Clearwire Material Adverse Effect.
payment obligation due to an input VAT adjustment (fVorsteuerberichtigung) Except as disclosed in Section 6.7(f) according to section 15 of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over German Value Added Tax Act (UStG) due to input VAT refunds claimed for an event having occurred prior to or at the relevant Taxing Authorities all Taxes required Closing Date;
n) The Movianto Companies will neither become liable to have been withheld and paid any Taxation in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 consequence of the Code and the Treasury Regulations thereunder execution or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 completion of this Agreement nor will not result in the recognition by NewCo Movianto Companies lose any Tax benefit or the benefit of any of its Subsidiaries of income concession or gain under Section 1502 of the Code and the Regulations thereunder clearance (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For for the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in however, real estate transfer taxes are borne by the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing Purchasers in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) Section 20.1. of this Agreement), deemed for U.S. federal income tax purposes this shall, however, not apply to be assumed by NewCo LLC any actions taken in connection with the transactions described recapitalization of the Movianto Companies in Articles 3 order to prepare the repayment of the Intercompany Debt as proposed in the Deloitte Step Plan;
o) None of the Movianto Companies has reduced the tax base of any asset by way of a write-off which has not yet been recaptured.
11.1.2 The Sellers undertake not to change their current practice of tax reporting and 4 hereof will constitute “qualified liabilities” compiling and filing tax returns (in particular with regard to tax elections and settlements) which may have any impact on the Purchasers or on any Movianto Company.
11.1.3 Seller 1 shall indemnify and hold the Purchasers and/or, at the Purchaser’s election, the Movianto Companies harmless from and against all Taxes, costs and expenses (including reasonable fees of legal and tax consultants) incurred by the Purchasers and/or any of the Movianto Companies as defined a result of or in Treasury Regulation connection with:
a) any (partial or full) breach or incorrectness of any guarantee given in Section 1.707-5(a)(6)(i)(D)11.1.1;
b) any breach of the undertaking made in Section 11.1.2; and
c) any liability of any of the Movianto Companies for Taxes or in respect of Taxes (whether by law, contract or otherwise) relating to a period ending on or before the Closing Date not limited or excluded under Section 11.1.4.
Appears in 1 contract
Tax. (a) None All amounts which are payable in connection with these Auction Terms, the Auction Participation Agreement or the ICE Data Services and Software Services Agreement shall be made without withholding or deduction for or on account of tax, save only as may be required by Applicable Law. To the extent that such a deduction or withholding is so required to be made from any amount which is so payable to or for the account or benefit of the assets of Clearwire Auctioneer, ICE Data, LP or any affiliate, the relevant Auction Participant shall pay such additional amounts as may be necessary to ensure that the net amount received and retained by or for the account or benefit of its Subsidiaries is subject to the Auctioneer. ICE Data, LP or any material Encumbrance for Taxes, except for liens for Taxes not yet due affiliate after such deduction or withholding shall equal the amount which would have been so received and payableretained had no deduction or withholding been so required.
(b) All material Tax Returns required amounts which are payable in connection with these Auction Terms, the Auction Participation Agreement or the ICE Data Services and Software Services Agreement and which (in whole or in part) constitute the consideration for value added tax purposes for any supply of goods or services shall be deemed to be filed by Clearwire exclusive of any value added tax which is chargeable on that supply. If value added tax is chargeable on any supply made in connection with these Auction Terms, the Auction Participation Agreement or the ICE Data Services and Software Services Agreement for which the Auctioneer, ICE Data, LP or any affiliate (the "supplier") is liable to account, the relevant Auction Participant shall pay to the supplier, in addition to and (where relevant) at the same time as paying any other consideration for such supply, a sum equal to the amount of its Subsidiaries have been timely filedsuch value added tax, and all those Tax Returns are true, correct and complete in all material respectstogether with any related interest or penalties.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there Where an Auction Participant is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments these Auction Terms, the Auction Participation Agreement or the ICE Data Services and Software Services Agreement to employeesreimburse or indemnify the Auctioneer, independent contractorsICE Data, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, LP or any reportable transaction affiliate in respect of any cost or expense, such reimbursement or indemnity shall be for the principal purpose full amount of which was tax avoidancesuch cost or expense, within including the meaning of Sections 6011part thereof that represents value added tax, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, save to the Knowledge extent that the Auctioneer determines in its absolute discretion that it, ICE Data, LP or an affiliate is entitled to credit or repayment in respect of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For such value added tax from the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)relevant tax authority.
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Auction Terms for Carbon Credits
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required by Law to be filed by Clearwire Acquiror or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All material amounts of Taxes owed due and owing by Clearwire the Acquiror and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in of the Clearwire Financial Statements other than in Acquiror neither the Acquiror nor any of its Subsidiaries have incurred or accrued any material Tax liability or material amounts of taxable income or gain outside the ordinary course of business.
(c) Each of Acquiror and its Subsidiaries has (i) withheld and deducted all amounts of Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority; and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all reporting and record keeping requirements;
(d) Except as disclosed Neither the Acquiror nor any of its Subsidiaries is engaged in Section 6.7(d) of the Clearwire Disclosure Scheduleany material audit, there is no currently pending audit or administrative proceeding or judicial proceeding with respect to Taxes Taxes,. Neither the Acquiror nor any of Clearwire its Subsidiaries has received any written notice from a Governmental Authority of a dispute or claim with respect to a material amount of Taxes, other than disputes or claims that have since been resolved, and to the knowledge of the Acquiror, no such claims have been threatened. No written claim has been made, since January 1, 2017, by any Governmental Authority in a jurisdiction where the Acquiror or any of its SubsidiariesSubsidiaries does not file a Tax Return that such entity is or may be subject to Taxes by that jurisdiction. Except as disclosed in Section 6.7(d) There are no 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, material Taxes of the Clearwire Disclosure Schedule, neither Clearwire Acquiror or any of its Subsidiaries and no written request for any such waiver or extension is currently pending.
(e) Neither the Acquiror nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (iipredecessor thereof) has entered into any waivers constituted either a “distributing corporation” or extensions a “controlled corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of the statute Code (or so much of limitations with respect Section 356 of the Code as relates to material Taxes.
(eSection 355 of the Code) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatsince January 1, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect2017.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each Neither Acquiror nor any of its Subsidiaries have withheld and paid over has been a party to any “listed transaction” within the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesmeaning of Treasury Regulation Section 1.6011-4(b)(2).
(g) Neither Clearwire the Acquiror nor its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (A) change in, or use of an improper, method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date and made prior to the Closing; (B) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income tax law); (C) installment sale or open transaction disposition made prior to the Closing; (D) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income tax law); (E) prepaid amount or deferred revenue received prior to the Closing; or (F) any election under Section 108(i) of the Code (or any corresponding or similar provision of state, local or foreign income tax law). Neither the Acquiror nor its Subsidiaries will be required to make any payment after the Closing Date as a result of an election under Section 965(h) of the Code.
(h) There are no Liens with respect to Taxes on any of the assets of the Acquiror or its Subsidiaries, other than Liens for Taxes not yet due and payable.
(i) Neither the Acquiror nor any of its Subsidiaries has entered intobeen a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes (other than an affiliated, combined, consolidated, unitary or other group consisting solely of one or more of the Acquiror and its Subsidiaries). Neither the Acquiror nor any of its Subsidiaries has any material liability for the Taxes of any Person (other than the Acqurior or its Subsidiaries) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or (ii) as a transferee or successor, by Contract or by application of Law (except, in each case, for liabilities pursuant to commercial contracts not primarily relating to Taxes).
(j) Neither the Acquiror nor any of its Subsidiaries is a party to, or otherwise participated (directly or indirectly) in, any “listed transaction”bound by, or has any reportable obligation to any Governmental Authority or other Person (other than the Acquiror or its Subsidiaries) under any Tax allocation, Tax sharing, Tax indemnification or similar agreements (except, in each case, for any such agreements that are commercial contracts not primarily relating to Taxes).
(k) The Acqurior has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that, would reasonably be expected to prevent the Merger, taken together, from constituting a transaction the principal purpose of which was tax avoidance, that qualifies as a “reorganization” within the meaning of Sections 6011, 6111 or 6112 Section 368(a) of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Merger Agreement (Conyers Park II Acquisition Corp.)
Tax. (a) None Sellers have complied with all Tax laws in all jurisdictions in which each is or has been subject to taxation of any nature whatsoever and each has timely filed, or caused to be filed, all federal, state, local and foreign tax returns of any nature whatsoever which are required to be filed by it and has paid or caused to be paid all Taxes required to be paid by it; all such tax returns and reports are true, accurate and complete; there are no Taxes being contested by a Seller; there are no unpaid penalties or interest relating to Tax deficiencies of any nature whatsoever owed by a Seller; there is no taxable income required to be reported by a Seller in any Tax period ending after the Closing Date, which income is attributable to a change in accounting methods which required or permitted the deferral of gross or net income to a later Tax period; there are, and will hereafter be, no Tax deficiencies payable by a Seller of any kind for any Tax periods (or portion thereof) ending on or before the Closing Date; neither Seller has granted any extension of the assets statute of Clearwire or any of its Subsidiaries is subject limitations relating to any material Encumbrance for Taxestax matters of such Seller and is not the beneficiary of any extension of time within which to file any tax return; all Taxes and other assessments or levies which a Seller is required by law to withhold or to collect have been duly withheld and collected, except for liens for Taxes and have been paid on a timely basis to the proper governmental authorities or, if not yet due due, are held by such Seller in a separate bank account or otherwise segregated on the books of such Seller for payment; and payableeach Seller has made adequate provision for payment of Taxes of any nature whatsoever payable by such Seller for any current period for which returns are not yet due.
(b) All material There are no federal, state, local or foreign Tax Returns required liens, encumbrances, charges or other security interests in or upon any property or assets of a Seller, whether for income, payroll, sales, or Taxes of any other kind; neither has received notice that it is delinquent in the payment of any Tax or estimated Tax payments, and neither Seller has requested any extension of time within which to be filed by Clearwire or file any of its Subsidiaries tax return which has not since been filed. Schedule 5.29 lists the periods through which such Seller's tax returns have been timely filedexamined or audited by the Internal Revenue Service or other appropriate taxing authorities. Each Seller has heretofore furnished Purchaser with true and complete copies of (i) all audit reports received from any taxing authority within the last five (5) years, (ii) all federal income tax returns of such Seller for all fiscal years ending on or after June 30, 1997, and (iii) all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding tax returns filed with respect to Taxes of Clearwire Seller for all fiscal years ending on or after June 30, 1997. No notices respecting asserted or assessed deficiencies for any of Tax have been received by either Seller. Neither Seller is required to file tax returns in any foreign, state or local jurisdiction for any tax period except in those foreign, state and local jurisdictions in which it has filed. Each Seller has paid or accrued on its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries Balance Sheet (i) is a party all Taxes (including interest, penalties or additions) for all Taxable periods ended on or prior to or bound by any material closing agreementMarch 31, offer in compromise2000 , gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or and (ii) has entered into all Xxxxx (xxxxxxxxx xxxxxxxt, penalties or additions) properly apportionable to any waivers or extensions day through March 31, 2000 (apportioned as if March 31, 2000 were the end of the statute of limitations with respect to material Taxes.
(eTaxable year or period) Clearwire has no Knowledge of any proposed for all taxable years or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatperiods including, if upheldbut not ending on, wouldMarch 31, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes2000. No action has been taken investigation, examination or audit by Clearwire any Tax agency or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) authority is presently pending or, to the Knowledge of ClearwireSellers, threatened, and neither Seller is a party to any other material items action or proceeding by any governmental authority for the assessment or collection of income or Tax (“Clearwire Transaction Tax Items”)Taxes, nor has any such event been asserted or, to the Knowledge of Sellers, threatened. For Neither Seller has filed any consent of the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) type described under Section 6.7(j341(f) of the Clearwire Disclosure sets forthCode or made any election or deemed election pursuant to Section 338 of the Code. Neither Seller has made any payments, in all material respects, the information concerning is obligated to make any limitations on the ability of NewCo payments or is a party to utilize the net operating losses of Clearwire for U.S. federal income Tax any agreement that could obligate it to make any payments that would not be deductible under Code Section 280G. For purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income "tax purposes returns" means all reports, returns, declarations, statements or other information required to be assumed by NewCo LLC supplied to a taxing authority in connection with Taxes, including any schedule or attachment thereto and any amendment thereof.
(c) Neither Seller is a party to any Tax allocation or sharing agreement. Neither Seller has any liability for the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” Taxes of any other entity or person, as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)a transferee or successor, under applicable federal, state, local or foreign law, by contract or otherwise.
Appears in 1 contract
Tax. (a) None of Each Company has timely filed (taking into account extensions) with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All appropriate Governmental Body all material Tax Returns that such Company was required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those . All such Tax Returns are true, correct and complete in all material respects.
(c) . All material Taxes owed (or to be remitted) by Clearwire and its Subsidiaries each Company (whether or not shown on any Tax Return) have been paidpaid to the appropriate Governmental Body. In the last three years, except for those Taxes being contested no claim has been made by any Governmental Body in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementsa jurisdiction where any Company does not file income or franchise Tax Returns that such Company is or may be subject to income or franchise taxation by that jurisdiction. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this AgreementPermitted Encumbrances, neither Clearwire nor there are no Encumbrances on any of its Subsidiaries has incurred the assets of any liability Company that arose in connection with, or otherwise relate to, any failure (whether or not duealleged failure) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of businessto pay any Tax.
(db) Except as disclosed in Section 6.7(d4.15(b) of the Clearwire Disclosure ScheduleSchedule (i) contains a list of all states, there is no territories and other jurisdictions (whether domestic or foreign) in which each Company has filed an income or franchise Tax Return at any time during the last three calendar years, (ii) identifies those Tax Returns described in clause (i) above that currently pending audit or administrative or judicial proceeding are the subject of audit, and (iii) lists all rulings of a Taxing Authority with respect to Taxes that will be binding on a Company following the Closing. Seller has delivered or made available to Buyer true, correct and complete copies of Clearwire all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of agreed to by, each Company during the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of three-year period ending on the statute of limitations with respect to material TaxesClosing Date.
(ec) Clearwire Each Company has no Knowledge of any proposed withheld or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries thatcollected, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities proper Governmental Body, all material Taxes required to have been withheld or collected and paid remitted, and complied in all material respects with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, equity holder, independent contractorscontractor, creditors, shareholders or other third partiesparty.
(gd) Neither Clearwire nor The unpaid Taxes of the Companies (i) did not, as of December 31, 2013, exceed the accruals and reserves for Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth in the Financial Statements dated as of its Subsidiaries such date and (ii) will not exceed such accruals and reserves as adjusted for the passage of time and business operations of the Companies through the Closing Date.
(e) There is no audit, examination, investigation or other proceeding with respect to Taxes (a “Tax Proceeding”) pending or being threatened in writing. No Company has waived any statute or period of limitations with respect to any Tax or agreed to any extension of time with respect to the collection or assessment of any Tax, in each case, which waiver or extension is currently in effect.
(f) No Company is a party to any Tax allocation, sharing, reimbursement or similar agreement other than (x) any such agreement solely among the Companies and (y) any agreement entered into, into in the ordinary course of business and not primarily relating to Taxes. No Company has any Liability for Taxes of any Person (other than another Company) under Treasury Regulation § 1.1502-6 (or otherwise any similar provision of any other Law) or as a transferee or successor. No Company has participated (directly or indirectly) in, in any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation § 1.6011-4 or “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(g) Seller is, and since its date of formation has been, a validly electing S Corporation within the meaning of Code §§ 1361 and 1362 for U.S. federal income Tax purposes. Each Company is, and at all times during which it has been owned by Seller has been either (i) a qualified subchapter S subsidiary within the meaning of Code § 1361(b)(3)(B) or (ii) a “disregarded entity” within the meaning of Treasury Regulation § 301.7701-3 for U.S. federal income Tax purposes. The classification of Seller and each Company for applicable state income Tax purposes during the periods described in the first and second sentence of this Section 1.707-5(a)(6)(i)(D4.15(g), respectively, conformed to the U.S. federal income Tax classification in each jurisdiction (x) that follows the U.S. federal income tax classification of such entity or (y) in which a valid election has been made by Seller and/or the Companies to be classified in a manner consistent with their U.S. federal income Tax classification. Section 4.15(g) of the Disclosure Schedule identifies those states referred to in Section 4.15(b)(i) of the Disclosure Schedule that do not follow the U.S. federal income Tax classification of Seller and/or the Companies for state income Tax purposes, whether a classification election has been made in such state, and the classification elected.
(h) This Section 4.15 and Section 4.21 contain all of Seller’s representations and warranties with respect to the matters relating to Taxes and Tax Returns.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Tire Distributors Holdings, Inc.)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is 7.1 Seller shall be liable for, indemnify, and hold harmless, subject to any material Encumbrance for TaxesPurchaser's unfettered discretion, except for liens for Taxes not yet due the JW Entities and/or Purchaser from all taxes and payable.
social security payments including ancillary taxes (bsteuerliche Nebenleistungen) All material Tax Returns required to be filed by Clearwire resulting from tax assessments (Steuerbescheide) or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
liability assessments (cHaftungsbescheide) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments taxes (jointly referred to employeesas "Taxes" or "Tax") attributable to a taxable period and/or business year or period ending on or before the Economic Transfer Date, independent contractorsin particular in connection with a Tax audit (such assessment or amendment thereof a "Tax Assessment"), creditors, shareholders or other third partiesunless such Taxes were calculated as Debt under Annex 3.1.
(g) Neither Clearwire nor any of its Subsidiaries has entered into7.2 Seller shall not be liable under the foregoing paragraph if and to the extent such tax liabilities are shown or provided for in the Financial Statement, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction provided that the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyadjustment mechanism in Sec. 3 remains unaffected thereof.
7.3 Purchaser shall be responsible for and shall hold Seller harmless against any Taxes relating to or attributable to the JW Entities attributable to all taxable periods and/or business years or period beginning after the Economic Transfer Date.
7.4 Seller shall be entitled to compensation by Purchaser for Tax refunds or future Tax reductions received by Purchaser or its affiliates (hincluding after the Economic Transfer Date the JW Entities) Except as set forth in Section 6.7(hif and to the extent that Tax Assessments regarding the JW Entities for taxable (assessment) periods or business years or period ending on or before the Economic Transfer Date are amended or assessed, especially by Tax audit, and such amendments will cause future Tax reductions (Steuerminderungen) of Purchaser's or JW Entities' Tax liabilities, e.g. by the Clearwire Disclosure Schedule, each Subsidiary increase of Clearwire is either acquisition costs of (xdepreciable) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result assets reflected in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”)respective balance sheet which Purchaser and/or JW Entities would not have obtained otherwise. For the avoidance of doubt, Clearwire Transaction : Future Tax Items reductions solely and exclusively based on a future step-up in the Tax basis of the JW Entities' assets shall not include any items be to the sole benefit of income the Purchaser.
7.5 Tax benefits and future Tax reductions which Purchaser or gain of Sprint or any of its Subsidiaries affiliates (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in after the LLC Contribution).
(jEconomic Transfer Date the JW Entities) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing received in accordance with Sections 10.1(b)(iv)(Fthe aforesaid shall reduce the indemnity up to, or respectively, give Seller a claim against Purchaser of an amount equal to their net present value, based on (i) or 10.1(b)(iv)(Hthe assumption of immediate use of Tax loss carry backs (Verlustrucktrage) of this Agreementand loss carry forwards (Verlustvortrage), deemed (ii) the Tax rate for U.S. federal trade tax and corporate income tax purposes applicable as of the date the respective Tax benefits or Tax reductions were received for the first time, and (iii) the net present value being calculated using an interest rate of 6 % p.a.
7.6 Indemnification payments by Seller under this Article 7 shall be made within ten (10) Business Days following written notice by Purchaser, provided that the payment of such amounts to the Tax authority is assessed, and further provided that Seller shall not be required to make any payment earlier than ten (10) Business Days before such Taxes are due. For claims under this Article 7, the provisions of Sec. 6.8 shall apply mutatis mutandis.
7.7 The Purchaser and the Seller agree to furnish or cause to be assumed by NewCo LLC furnished to each other, upon request, and each at their own expense, as promptly as practicable, such information (including access to books and records, documents or other materials including relevant working papers) and assistance relating to the JW Entities as is necessary for the filing of any Tax return, for the preparation for any Tax audit, and for the prosecution or defense of any claim, suit or proceeding relating to any adjustment or proposed adjustment with respect to Taxes covering any taxable assessment period ending on or before the Closing Date, including making employees available on a mutually convenient basis to provide additional information and explanations of any material provided hereunder.
7.8 Subject to the following provisions, Seller agrees to procure the preparation and filing of all Tax returns of the JW Entities for any taxable assessment period ending on or before June 30, 2002. Purchaser shall procure that the JW Entities file Tax returns for the taxable assessment period including the Economic Transfer Date in connection accordance with instructions from, and only with the transactions described prior written consent of, Seller to the extent such instructions comply with applicable laws. Tax returns for the period including the Economic Transfer Date shall be prepared on a basis consistent with those prepared for prior taxable assessment periods. Purchaser shall procure that Seller is provided with a copy of such completed return at least twenty-five (25) Business Days prior to the due date for the filing of such return, and Seller shall have the right to review such return and statement prior to the filing thereof. In case of disputes, Seller and Purchaser will enter into consultations and will attempt in Articles 3 good faith to resolve any open issues. Purchaser shall give to Seller and 4 hereof its personnel, agents, accountants or other professional advisors full information and full access to the books and records of the JW Entities for taxable assessment periods ending on or before or including the Economic Transfer Date, to the extent reasonably requested.
7.9 Each of the Parties shall be notified by the respective other Party of any order announcing a Tax audit that may partially or fully extend to taxable assessment periods ending on or before or including the Economic Transfer Date and any Tax Assessment resulting therefrom. Such notifications must be made immediately after the receipt of the respective order or Tax Assessment.
7.10 The Parties will constitute “qualified liabilities” assist each other in any Tax audit or administrative or court proceeding of the JW Entities relating to any taxable assessment period ending on or before or including the Economic Transfer Date. The Purchaser and the Seller shall keep the respective other party closely informed as defined to the progress of such Tax audit, or appeal or action against any Tax Assessment resulting from such Tax audit.
7.11 For the announced Tax audit for corporate income and trade tax regarding the taxable periods from 1996 through 2000, Seller may elect to direct itself or through its authorized representative of its own choice who is subject to professional secrecy (Berufsverschwiegenheit) such audit and all administrative or judicial proceedings involving any additional Taxes asserted in Treasury Regulation Section 1.707such audit. For all Tax audits relating to periods ending on or before or including the Economic Transfer Date (including the Tax audit for the taxable periods from 1996 through 2000 referred to above), Seller, at its request and at its own costs, through its authorized representative who is subject to professional secrecy (Berufsverschwiegenheit), shall be granted the possibility of participating in a Tax audit, inspecting all relevant documents and making all necessary procedural declarations relating to periods ending on or before or including the Economic Transfer Date, provided however, that declarations which could result in a negative effect on the Tax position of one of the JW Entities shall require the prior written consent of the Purchaser which shall not be unreasonably withheld. In case of disputes, Seller and Purchaser will enter into consultations and will attempt in good faith to resolve any open issues. The Purchaser shall, at the request of the Seller, cause any of the JW Entities to appeal (Einlegung eines Einspruchs) and, if necessary, take legal action (Klageerhebung) against a revised Tax Assessment. The Seller shall bear the costs of any appeal and/or action it causes to be pursued. The respective JW Entity shall be represented by a tax counsel appointed by the Purchaser who shall be instructed to consult with the tax counsel appointed by the Seller for that purpose.
7.12 Claims arising according to this Article 7 shall be time-5(a)(6)(i)(D)barred after the expiration of a six-month period beginning (i) in case of claims of Purchaser on the date on which the respective Tax Assessment becomes final (bestandskraftig) and (ii) in case of claims of Seller on the date on which a copy of the respective Tax Assessment and of the relevant tax balance sheets and tax returns have been submitted to Seller. ss. 203 of the German Civil Code shall not apply.
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Samples: Share Purchase and Transfer Agreement (Johnson Outdoors Inc)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due Each Tronox Party and payable.
(b) All material Tiwest has timely filed all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedwith the appropriate Taxing Authority in accordance with all applicable laws, and all those such Tax Returns are true, correct and complete in all material respects.
(c) . All Taxes due from each Tronox Party and Tiwest have been timely paid. Adequate reserves or accruals for Taxes have been provided in the Projections in respect of any period for which Tax Returns have not yet been filed or for which Taxes are not yet due and owing. No material Taxes owed by Clearwire and its Subsidiaries (whether will be imposed on a Tronox Party or not shown on any Tax Return) have been paid, except for those Taxes being contested Tiwest in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely connection with or as the result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date implementation of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is First Amended Plan. There are no currently pending audit or administrative or judicial proceeding Liens with respect to Taxes any Retained Asset or Tiwest or its assets as a result of Clearwire failure to pay Taxes. No investigation, audit, proceeding or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound other examination by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority is in progress, pending or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of to the statute of limitations Company’s Knowledge threatened with respect to material Taxes.
(e) Clearwire any Tax Return filed by, or Taxes relating to any Tronox Party or Tiwest. No agreement, consent, clearance, or other Tax ruling or agreement has no Knowledge been executed or entered into relating to Taxes by any Tronox Party in connection with any Retained Asset or Tiwest, including any IRS private letter rulings or comparable rulings of any proposed or threatened Tax claims or assessments with respect Taxing Authority and closing agreements pursuant to Clearwire Section 7121 of the IRC or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have similar law. Each Tronox Party has withheld and paid over to the relevant Taxing Authorities timely remitted all material Taxes required to have been withheld and paid remitted in connection with payments amounts paid or owing to employeesany employee, independent contractorscontractor, creditorscreditor, shareholders stockholder, or other third parties.
(g) party. No dispute or claim concerning any Tax Liability of any Tronox Party with respect to its Retained Assets or Tiwest has been proposed, threatened or claimed by any Taxing Authority. Neither Clearwire any Tronox Party nor Tiwest has waived any statute of its Subsidiaries has entered intolimitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. Neither any Tronox Party nor Tiwest is a party to any Tax allocation, sharing, or otherwise participated similar arrangement or agreement (directly whether or indirectly) innot in writing). Neither any Tronox Party nor Tiwest is required to include in income any adjustment in its current or in any future taxable period by reason of a change in accounting method; nor, to the Company’s Knowledge, has a Taxing Authority proposed or is considering proposing, any “listed transaction”change in accounting method. Neither any Tronox Party nor Tiwest is a party to any agreement, Contract, or arrangement that (individually or in the aggregate) could reasonably be expected to give rise to the payment of any reportable transaction the principal purpose compensation (whether in cash or property, including stock or other equity interests) that would not be deductible in full when paid or accrued. Each of which was Tronox LLC, Tronox Worldwide LLC, Tronox Pigments (Netherlands) B.V., Tronox Pigments (Holland) B.V., Tronox B.V., Tronox Funding LLC, Tronox Luxembourg S.ar.L., Tronox Pigments International GmbH, Tronox Pigments GmbH, Tronox Pigments S.p.r.l., Tronox Finance B.V., and Tronox Pigments Ltd. is currently disregarded for U.S. federal income tax avoidancepurposes and, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except except as set forth in Section 6.7(h) Schedule 4(z), has been so disregarded since the date of its formation. Each of the Clearwire Disclosure ScheduleCompany and Tronox Australia is, each Subsidiary and has always been since the date of Clearwire is either (x) its respective formation, properly treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action Tronox Pigments (Holland) B.V. has been taken by Clearwire not in the current fiscal year or in any of its Affiliates the preceding five fiscal years claimed, utilized or requested exemptions of deferrals in relation to treat NewCo LLC Tax, including exemptions or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)deferrals of Tax relating to reorganizations or mergers.
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Tax. 13.1 All sums payable under this Agreement are (unless expressly stated otherwise) exclusive of VAT (if any).
13.2 The Vendor and the Purchaser consider that the transfers of the Business Assets should be treated as transfers of a business as a going concern for the purposes of any applicable VAT legislation or fall within any other applicable exemption from VAT in accordance with any relevant provision to ensure that such transfers are not subject to VAT.
13.3 If they have not done so prior to the date hereof, the Business Vendor (or their advisers) may send to HIM. Customs & Excise or other appropriate tax authority a letter seeking a direction that the Business Vendor be permitted to keep and preserve following Completion the records referred to in section 49(1)(b) of the VATA or other applicable VAT legislation so far as they relate to the carrying on of the Business prior to Completion. If such direction is given, the Business Vendor shall preserve such records in good order and in such manner and for such period as Page 23 shall be required by law and shall give the Purchaser reasonable access to such records during normal business hours. If such direction is not given, the Business Vendor shall deliver such records to the Purchaser as soon as possible after Completion and the Purchaser shall preserve such records in good order and in such manner and for such period as shall be required by law and shall give the Business Vendor reasonable access to such records during normal business hours.
13.4 If any VAT is payable on any supply under or pursuant to this Agreement, the Purchaser agrees with the Vendor (for itself and as trustee for the maker of each such supply (the SUPPLIER)) that the Purchaser:
(a) None shall pay or procure the payment by the recipient of each such supply (the RECIPIENT) of the assets amount of Clearwire that VAT in addition to the price to the Vendor or any (at the Vendor's direction) to the relevant Supplier against issue by the Vendor or the relevant Supplier (as the case may be) of its Subsidiaries a VAT invoice in respect thereof or, where there is subject no provision in the legislation for the jurisdiction concerned that a VAT invoice is required to any material Encumbrance for Taxesbe issued, except for liens for Taxes not yet due and payable.then payment shall be made against written demand in respect thereof containing such information as is customary in that jurisdiction; and
(b) All material Tax Returns required to be filed by Clearwire shall indemnify the **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION** on an after-tax basis for any interest, penalties, fines or any surcharges imposed in connection therewith where HM Customs & Excise rule that the transaction is not a transfer of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except a going concern under clause 13.5 if the sole reason for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following ruling is the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date failure of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).**THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION** to:
(i) Except use the Business Assets to carry on the same kind of business as set forth in Section 6.7(ithat carried on by the Business Vendor; or
(ii) become taxable for VAT purposes (to the extent that is not already so taxable) (except to the extent that any such interest, penalty, fine or surcharge arises due to the delay of the Clearwire Disclosure Schedule, Vendor or the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result relevant Supplier in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, accounting to the Knowledge of Clearwireappropriate tax authority for such VAT, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For having received cleared funds in respect thereof from the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contributionrelevant Recipient).
(j) Section 6.7(j) 13.5 Without limiting clause 13.4 above, United Kingdom VAT shall be treated as payable if H.M. Customs & Excise or other appropriate tax authority rule that it is payable after full disclosure of all material facts and after reasonable representations on the issues have been made to HM Customs & Excise reflecting the views of the Clearwire Disclosure sets forthVendor and the Purchaser.
13.6 If the Purchaser fails to pay the amount of the VAT when due under clause 13.4, in all material respects, it shall pay Default Interest on that amount from the information concerning any limitations on the ability later of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes three Business Days following the Mergerdate of receipt of the VAT invoice or written demand (as appropriate) referred to in clause 13.4(a) above and the last date on which the Vendor is required to pay such amount to HM Customs & Excise (after taking into account any postponement of the due date obtained) until actual payment (excluding any period for which interest indemnified under clause 13.4(b) runs), compounded monthly.
(k) Any liabilities 13.7 The Purchaser hereby certifies that this Agreement is in respect of Clearwirenon-residential property on which stamp duty is not chargeable by virtue of the provisions of section 92 of the Finance Xxx 0000 in relation to properties listed in the Certified Property List in the Agreed Form.
13.8 The Vendor undertakes to the Purchaser to provide the UK Business Purchaser with sufficient details of all property in respect of which the UK Business Vendor has made an election under paragraph 2 of Schedule 10 to the Value Added Tax Xxx 0000 to waive the exemption for VAT, with so as to enable the possible exception of any indebtedness issued by Clearwire between the Execution Date UK Business Purchaser to make a similar election in relation to all those properties and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)notify such election to HM Customs & Excise before Completion.
Appears in 1 contract
Tax. (a) None of The Seller has timely filed with the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material appropriate Governmental Body all Tax Returns that the Seller is required to be have filed prior to the date hereof. All Tax Returns filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns the Seller are true, correct and complete in all material respects.
(c) . All material Taxes owed (or to be remitted) by Clearwire and its Subsidiaries the Seller (whether or not shown on any Tax Return) have been paidtimely paid to the appropriate Governmental Body. No event has occurred which could impose on Buyer any successor or transferee liability for any Taxes in respect of the Seller. No claim has been made by any Governmental Body in a jurisdiction where the Seller does not file Tax Returns that the Seller is or may be subject to the payment, except for those Taxes being contested collection or remittance of any Tax of that jurisdiction or is otherwise subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of the Seller that arose in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementsconnection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Except Since the Balance Sheet Date, the Seller has not incurred any Liability for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in outside the ordinary course of business.
(db) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure ScheduleThe Seller has withheld or collected, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities appropriate Governmental Body, all Taxes required to have been withheld or collected and paid remitted, and complied with all information reporting and back-up withholding requirements, and has maintained all required records with respect thereto, in connection with payments amounts paid or owing to employeesany employee, customer, creditor, equityholder, independent contractorscontractor, creditors, shareholders or other third partiesparty. The Buyer will not be required to withhold any amounts upon the transfer of the Purchased Assets to the Buyer.
(gc) Neither Clearwire There is no basis for any Governmental Body to, and neither the Seller nor any director or officer (or employee responsible for Tax matters) of its Subsidiaries the Seller expects any Governmental Body to, assess any additional Taxes for any period for which Tax Returns have been filed. There is no dispute or claim concerning any Liability for Taxes paid, collected or remitted by the Seller either (i) claimed or raised by any Governmental Body in writing or (ii) as to which the Seller has entered intoKnowledge.
(d) The Seller has not waived any statute or period of limitations with respect to any Tax or agreed, or otherwise participated been requested by any Governmental Body to agree, to any extension of time with respect to any Tax. No extension of time within which to file any Tax Return of the Seller has been requested, granted or currently is in effect.
(directly e) The Seller is, and since its organization has been, treated as a partnership for U.S. federal and applicable state income Tax purposes. The Seller has not made any payments, is not obligated to make any payments, and is not a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code § 280G or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, Code § 162(m). The Seller has not been a United States real property holding corporation within the meaning of Sections 6011Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). The Seller has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. The Seller is not a party to any Tax allocation, 6111 sharing, reimbursement or 6112 similar agreement. The Seller has no Liability for Taxes of any Person under Treasury Regulation § 1.1502-6 (or any similar provision of any other Law), as a transferee or successor, by Contract, or otherwise. No Purchased Asset constitutes “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code and the Treasury Regulations thereunder § 168. No Purchased Asset is an interest, directly or has received a written opinion from a tax advisor indirectly, in any joint venture, partnership, limited liability company or other entity that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b)federal, Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, purposes. No Purchased Asset is subject to the Knowledge anti-churning provisions of Clearwire, any other material items of income Code § 197(f)(9) or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)Treasury Regulations promulgated thereunder.
(jf) Section 6.7(j) of the Clearwire Disclosure sets forthThe Seller has not, directly or indirectly, participated in all material respectsany transaction (including, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued transactions contemplated by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will ) that would constitute (i) a “qualified liabilitiesreportable transaction” or “listed transaction” as defined in Treasury Regulation Section 1.707§ 1.6011-5(a)(6)(i)(D)4 or (ii) a “tax shelter” as defined in Code § 6111 and the Treasury Regulations thereunder.
(g) Schedule 4.14 (i) contains a list of all states, territories and other jurisdictions (whether domestic or foreign) in which the Seller has filed a Tax Return at any time during the six-year period ending on the date hereof, (ii) identifies those Tax Returns that have been audited, (iii) identifies those Tax Returns that currently are the subject of audit, (iv) lists all Tax rulings and similar determinations requested or received by, or otherwise relate to, the Seller, and (v) contains a complete and accurate description of all material Tax elections that were made by or on behalf of the Seller. The Seller has delivered or made available to the Buyer true, correct and complete copies of all Tax Returns filed by, and all examination reports, and statements of deficiencies assessed against or agreed to by, the Seller during the six-year period ending on the date hereof.
(h) Schedule 4.14 lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employee Benefit Plan) to which the Seller is a party that is a “nonqualified deferred compensation plan” within the meaning of Code §409A and the Treasury Regulations promulgated hereunder. Each such nonqualified deferred compensation plan (i) complies, and is operated and administered in accordance, with the requirements of Code §409A, the Treasury Regulations promulgated hereunder and any other IRS guidance issued thereunder and (ii) has been operated and administered in good faith compliance with Code §409A from the period beginning on January 1, 2005.
Appears in 1 contract
Tax. (a) None of Except as has not had, and would not reasonably be expected to have, an Ironman Material Adverse Effect, individually or in the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.aggregate:
(bi) All material Each of Ironman and the Ironman Subsidiaries has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filedit, and all those such Tax Returns are true, correct complete and complete accurate and prepared in compliance in all material respects.
(c) respects with all applicable Laws. All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown to be due on any such Tax ReturnReturns) have been timely paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) Each of Ironman and the Ironman Subsidiaries has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(eA) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have timely withheld and paid over to the relevant Taxing Authorities appropriate Tax authority all Taxes amounts required to have been withheld and paid in connection with payments amounts paid or owing to employeesany employee, individual independent contractorscontractor, creditorsother service providers, shareholders equity interest holder or other third partiesthird-party and (B) otherwise complied with all applicable law relating to the withholding, collection, and remittance of Taxes (including information reporting requirements).
(giii) Neither Clearwire No deficiency with respect to any Taxes has been proposed, asserted or assessed by a Governmental Entity against Ironman or any of the Ironman Subsidiaries, and no requests for waivers of the time to assess any such Taxes are pending.
(iv) There is no audit, proceeding or investigation now pending against or with respect to Ironman or any of the Ironman Subsidiaries in respect of any Tax or Tax asset and neither Ironman nor any of its the Ironman Subsidiaries has received any written notice of any proposed audit, proceeding or investigation with regard to any such Tax or Tax asset.
(v) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered intointo by, or otherwise participated issued by any Tax authority with respect to any of, Ironman or the Ironman Subsidiaries which agreement or ruling would be effective after the Closing Date.
(directly vi) There are no Liens for Taxes (other than for current Taxes not yet due and payable) on the assets of Ironman or indirectlyany of the Ironman Subsidiaries.
(vii) in, Neither Ironman nor any Ironman Subsidiary has entered into or has been a “material advisor” with respect to any transactions that are or would be part of any “listed reportable transaction”, ” or that could give rise to any reportable transaction the principal purpose of which was tax avoidance, within the meaning of list maintenance obligation under Sections 6011, 6111 6111, or 6112 of the Code and (or any similar provision under any state or local Law) or the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltythereunder.
(hviii) Except as set forth During the two (2) year period ending on the date of this Agreement, neither Ironman nor any Ironman Subsidiary was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 6.7(h) 355 of the Clearwire Disclosure ScheduleCode.
(ix) Neither Ironman nor any Ironman Subsidiary (i) has been a member of an affiliated group filing a consolidated, each Subsidiary combined, affiliated, unitary or similar Tax Return (other than a group the common parent of Clearwire is either which was Ironman or any Ironman Subsidiary) or (ii) has any liability for the Taxes of any Person (other than Ironman or any Ironman Subsidiary) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(x) In the past three (3) years, no written claims have been made by any Tax authority in a jurisdiction where Ironman or any Ironman Subsidiary does not file a Tax Return that Ironman or such Ironman Subsidiary is or may be subject to Taxation by that jurisdiction with respect to Taxes that would be the subject of such Tax Return, which claims have not been resolved or withdrawn.
(xi) Neither Ironman nor any Ironman Subsidiary is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than (i) one that is included in a commercial Contract entered into in the ordinary course of business that is not primarily related to Taxes, or (ii) one the only parties to which are Ironman or other Ironman Subsidiaries).
(xii) Ironman is, and has always been, treated as a partnership or (y) disregarded as an entity separate from its owner, corporation for U.S. federal income tax purposes. No action has been taken Section 3.17(a)(xii) of the Ironman Disclosure Schedule sets forth all elections made by Clearwire Ironman or any of its Affiliates Ironman Subsidiary pursuant to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Treasury Regulations Section 1.1(b), Section 1.1(c) and this Section 6.7(h)301.7701-3.
(ixiii) Except Neither Ironman nor any of the Ironman Subsidiaries has taken advantage of any relief or Tax deferral provisions or any carryback of net operating losses or similar Tax items related to COVID-19 for Tax purposes whether federal, state, local or foreign, including the CARES Act.
(xiv) The most recent financial statements contained in the Ironman SEC Documents reflect an adequate reserve for all Taxes payable by Ixxxxxx and the Ironman Subsidiaries (excluding any reserve for deferred Taxes to reflect timing differences between book and Tax items) for all Taxable periods and portions thereof through the date of such financial statements.
(xv) Ironman and each Ironman Subsidiary is a Tax resident only in its jurisdiction of formation. Ironman and each Ironman Subsidiary is and has always been a non-Israeli resident company that has no activities, assets or a permanent establishment (within the meaning of an applicable Tax treaty) in Israel, and its activities are, and have always been controlled and managed outside of Israel. None of Ironman’s directors, officers, managers and general managers is an Israeli resident. To the Knowledge of Ironman, no more than 25% of the total number of all issued and outstanding shares of Ironman, in the aggregate, are held by any Persons who are Israeli residents for Tax purposes.
(b) No Ironman Subsidiary which was not created or organized in the United States such that such entity would be taxable in the United States as set forth in a domestic entity pursuant to United States Treasury Regulations Section 6.7(i301.7701-5(a) (each, a “non-U.S. Ironman Subsidiary”) is or has ever been a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo Code or any of its Subsidiaries of income or gain is treated as a U.S. corporation under Section 1502 7874(b) of the Code. Each non-U.S. Ironman Subsidiary is, and has been since formation, a Tax resident only in its jurisdiction of incorporation for Tax purposes and is not and has not been treated as having a permanent establishment (within the meaning of an applicable Tax treaty), branch or taxable presence in any jurisdiction other than its jurisdiction of incorporation.
(c) Neither Ironman nor any Ironman Subsidiary has taken any action or agreed to take any action, or is aware of any fact or circumstance, that could reasonably be expected to cause Sun to be treated as (i) a Tax resident of any jurisdiction other than Israel following the Merger, (ii) a “domestic corporation” (as such term is defined in Section 7701 of the Code) as a result of the application of Section 7874(b) of the Code and or (iii) a “surrogate foreign corporation” within the Regulations thereunder meaning of Section 7874(a)(2)(B) of the Code after the Closing Date.
(d) None of the outstanding options or warrants (if any) to purchase or acquire Ironman Common Stock (i) were issued by Ironman (or any comparable provision under state current or local income Tax lawformer Ironman Affiliate) or, to with an exercise price that was less than the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) fair value of the Clearwire Disclosure sets forthunderlying Ironman Common Stock (or Subsidiary shares) for which the options or warrants were exercisable at the time such options or warrants were issued, in all material respects(ii) are, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwireor have ever been, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed properly treated as stock for U.S. federal income tax purposes purposes, or (iii) were issued with terms such that a holder of such warrants could be reasonably expected to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)economically compelled to exercise such warrants.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required to be filed by Clearwire or any of its Subsidiaries have been timely filed, and all those Tax Returns are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been paid, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(dset forth on Schedule 4.1(l) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, wouldwould not, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
Effect on the Wachovia Contributed Subsidiaries, (fi) Except as disclosed the Wachovia Contributed Subsidiaries and the other Subsidiaries of Wachovia with respect to the Wachovia Contributed Business have timely filed (or Wachovia has timely filed on their behalf) with the appropriate taxing authorities all Tax Returns required to be filed by or with respect to the Wachovia Contributed Business, (ii) the Wachovia Contributed Subsidiaries and the other Subsidiaries of Wachovia with respect to the Wachovia Contributed Business have paid in Section 6.7(ffull (or Wachovia has paid in full on their behalf) all Taxes due by or in respect of the Clearwire Disclosure ScheduleWachovia Contributed Business for all periods, Clearwire (iii) each Wachovia Contributed Subsidiary and each other Subsidiary of its Subsidiaries have withheld and paid over Wachovia with respect to the relevant Taxing Authorities Wachovia Contributed Business has duly and timely withheld all Taxes required to have been be withheld and paid in connection with payments its business or assets, and such withheld Taxes have been either duly and timely paid to employeesthe proper Governmental Authorities or properly set aside in accounts for such purpose, independent contractors, creditors, shareholders (iv) there are no material outstanding adjustments for Tax purposes applicable to any Wachovia Contributed Subsidiary or other third parties.
Subsidiary of Wachovia with respect to the Wachovia Contributed Business and required as a result of changes in methods of accounting effected on or before the Closing Date, which adjustments will remain in force or by which any Wachovia Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (gv) Neither Clearwire nor no material elections for Tax purposes have been made by any Wachovia Contributed Subsidiary or other Subsidiary of Wachovia with respect to the Wachovia Contributed Business that will remain in force or by which any Wachovia Contributed Subsidiary or other Company Entity will be bound after the Closing Date, (vi) no Wachovia Contributed Subsidiary is a party to or bound by or has any rights or obligations under any Tax allocation, sharing, indemnity or similar agreement or arrangement that will remain in effect after the Closing Date, and (vii) no Wachovia Contributed Subsidiary is or has been a member of any group of companies filing a consolidated, combined or unitary Tax Return for any Tax period for which the statute of limitations for the assessment or collection of any Tax remains open, other than a group of which Wachovia or one of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction at all times been the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltycommon parent.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Retail Brokerage Company Formation Agreement (Prudential Financial Inc)
Tax. For purposes of this Section 6.17, the term “Seller” shall be construed to refer also to each predecessor-in-interest of Seller and each other Person for whose liability for Taxes Seller has or may have Liability.
(a) None of the assets of Clearwire Seller has filed or any of its Subsidiaries is subject caused to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material be filed on a timely basis all Tax Returns and all reports with respect to Taxes that are or were required to be filed pursuant to Applicable Requirements by Clearwire Seller or any for periods ending on the Closing Date, with respect to the Business, Acquired Assets, activities, income or operations of its Subsidiaries have been timely filed, and all those Seller. All Tax Returns and reports with respect to Taxes filed by Seller are true, correct and complete in all material respects.
(c) All material Taxes owed by Clearwire and its Subsidiaries (whether or not shown on any Tax Return) have been . Seller has timely paid, or made provision in the Seller Interim Balance Sheet for all Taxes for periods ending on the Closing Date related to the Acquired Assets, Business, income and operations of Seller that have or may have accrued or become due for all periods covered by the Tax Returns, or pursuant to any assessment received by Seller, except for those Taxes such Taxes, if any, as are listed in Schedule 6.17(a) and are being contested in good faith and for as to which adequate reserves (determined in accordance with GAAP) have been established provided in Clearwire’s Financial Statementsthe Seller Interim Balance Sheet. Except Seller currently is not the beneficiary of any extension of time within which to file any Tax Return related to the Business or Acquired Assets.
(b) Seller has delivered or made available to Buyer copies of all Tax Returns related to the Business or Acquired Assets filed since January 1, 2010. Schedule 6.17(b) sets forth each state, county, local municipal, domestic or foreign jurisdiction or Governmental Authority in or with which, with respect to the Business or Acquired Assets, Seller (i) files, or is or has been required to file January 1, 2010, a Tax Return, (ii) is required to register for any Tax purpose, (iii) is or has been liable for any Tax on a “nexus” basis at any time, (iv) is qualified to do business, (v) owns or regularly uses property, (vi) has any employee or in which any employee is regularly present, or (vii) has any agent, representative or distributor.
(c) No claim has ever been made or is expected to be made by any Governmental Authority in a jurisdiction where Seller does not file Tax Returns that Seller is or may be subject to taxation by that jurisdiction. Schedule 6.17(c) contains a complete list of all audits, examinations and investigations with respect to Taxes or Tax Returns of Seller or related to the Business or Assets that may arise solely have been audited or currently are under audit and a complete description of any and all deficiencies or other amounts that were paid or are currently being contested. All such deficiencies or other amounts proposed as a result of actions such audits have been paid, reserved against, or transactions following settled without further liability (or are being contested in good faith by appropriate proceedings as described in Schedule 6.17(c)). There is no dispute or claim concerning any Taxes related to the Execution Date permitted Business or Assets either (i) claimed or raised by this Agreement, neither Clearwire nor any Governmental Authority in writing or (ii) as to which Seller has Knowledge. Seller has not given or been requested to give waivers or extensions (or is or would be subject to a waiver or extension given by any other Person) of any statute of limitations relating to the assessment or payment of Taxes with respect to the Business or Acquired Assets. There is no Encumbrance on any of its Subsidiaries the Acquired Assets that arose in connection with any failure (or alleged failure) to pay any Tax, and Seller has incurred no Knowledge of any liability (whether or not due) basis for material assertion of any claims attributable to Taxes since the date of the most recent balance sheet included which, if adversely determined, would result in the Clearwire Financial Statements other than in the ordinary course of businessany such Encumbrance.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries Seller (i) is has not been a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any member of an Affiliated Group filing a consolidated federal income Tax indemnity or Tax sharing agreement with any person, or Return and (ii) has entered into does not have any waivers Liability for the Taxes of any Person under Treasury Regulation §1.1502-6 or extensions of the statute of limitations with respect to material Taxessimilar Law, as a transferee or successor, by Contract, or otherwise.
(e) Clearwire has no Knowledge No power of any proposed or threatened Tax claims or assessments attorney with respect to Clearwire Taxes has been executed by Seller or filed with any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected Governmental Authority with respect to have a Clearwire Material Adverse EffectSeller.
(f) Except as disclosed Seller has complied in Section 6.7(f) all material respects with all provisions of Tax Law relating to withholding, payment and remittance of Taxes and information reporting with respect thereto, and Seller has, within the Clearwire Disclosure Scheduletime and in the manner prescribed by Tax Law, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing proper Governmental Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third partiesamounts required.
(g) Neither Clearwire nor There is no Tax ruling, request for ruling or settlement, compromise, closing or Tax collection agreement in effect or pending which does or could affect the Liability of Seller or Buyer for Taxes with respect to the Acquired Assets or Business for any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction period after the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyClosing Date.
(h) Except as set forth in Section 6.7(h) No provisions of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) any Assumed Contracts are properly treated as a partnership or (y) disregarded for United States federal income tax purposes as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLCa partnership) other than or as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h)Indebtedness.
(i) Except as set forth in No Acquired Asset is (i) “tax exempt use property” within the meaning of Section 6.7(i168(h)(1) of the Clearwire Disclosure ScheduleCode or Section 470(c)(2) of the Code, (ii) tax-exempt bond financed property within the Merger and other transactions contemplated by Articles 2meaning of Section 168(g) of the Code, 3 and 4 of this Agreement will not result in the recognition by NewCo or (iii) subject to a lease under Code Section 7701(h) or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution)predecessor provision.
(j) Seller has never been a party to a “reportable transaction,” as such term is defined in Treasury Regulations Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations 1.6011-4(b)(1). Seller has disclosed on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. its federal income Tax purposes following the Merger.
(k) Any liabilities Returns all positions taken therein that could give rise to a substantial understatement of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with Tax within the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation meaning of Section 1.707-5(a)(6)(i)(D)6662 of the Code.
Appears in 1 contract
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes, except for liens for Taxes not yet due and payable.
(b) All material Tax Returns required by Law to be filed by Clearwire Acquiror or any of its Subsidiaries have been timely filed, and all those such Tax Returns are true, correct and complete in all material respects.
(cb) All material amounts of Taxes owed required by Clearwire and Law to be paid by Acquiror or its Subsidiaries (whether or not shown on any Tax Return) have been paidtimely paid (taking into account any valid extensions obtained in the ordinary course of business), except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following the Execution Date permitted by this Agreement, neither Clearwire nor any of its Subsidiaries has incurred any liability (whether or not due) for material Taxes since the date of the most recent balance sheet included of Acquiror neither Acquiror nor any of its Subsidiaries have incurred or accrued any material Tax liability or material amounts of taxable income or gain outside the ordinary course of business, except under this Agreement and/or the performance by Acquiror of its obligations hereunder, including transaction expenses.
(c) Each of Acquiror and its Subsidiaries has (i) withheld and deducted all amounts of material Taxes required to have been withheld or deducted by it in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder or any other third party, (ii) timely remitted such amounts to the Clearwire Financial Statements appropriate Governmental Authority; and (iii) complied in all material respects with applicable Law with respect to Tax withholding, including all information reporting and record keeping requirements;
(d) Neither Acquiror nor any of its Subsidiaries is engaged in any audit, administrative proceeding or judicial proceeding with respect to income or other material Taxes. Neither Acquiror nor any of its Subsidiaries has received any written notice from a Governmental Authority of a dispute or claim with respect to income or other material Taxes, other than disputes or claims that have since been resolved, and to the knowledge of Acquiror, no such claims have been threatened. No written claim has been made by any Governmental Authority in a jurisdiction where Acquiror or any of its Subsidiaries does not file a Tax Return that such entity is or may be subject to Taxes by that jurisdiction. There are no 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 of Acquiror or any of its Subsidiaries and no written request for any such waiver or extension is currently pending (other than in each case as a result of any valid extension of the time within which to file a Tax Return).
(e) Neither Acquiror nor any of its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) (i) within the past two (2) years or (ii) as a part of a “plan” or “series of related transactions” (each within the meaning of Section 355(e) of the Code) in connection with the Transactions.
(f) Neither Acquiror nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) (or any corresponding or similar provision of U.S. state or local or non-U.S. Law).
(g) Neither Acquiror nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of an improper, method of accounting for a taxable period (or portion thereof) ending 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 income tax law) entered into prior to Closing; (iii) installment sale or open transaction disposition made prior to the Closing; (iv) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income tax law) consummated or arising prior to the Closing; or (v) prepaid amount or deferred revenue received prior to the Closing, other than in the ordinary course of business.
(d) Except . Neither Acquiror nor its Subsidiaries will be required to make any payment after the Closing Date as disclosed in a result of an election under Section 6.7(d965(h) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesCode.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Power & Digital Infrastructure Acquisition Corp.)
Tax. (a) None of The Company and the assets of Clearwire or any of its Subsidiaries is subject to any have duly and timely filed with the appropriate taxing authorities all material Encumbrance for Taxesfederal, except for liens for Taxes not yet due state and payable.
(b) All local income Tax Returns and all other material Tax Returns required to be filed by Clearwire through the date hereof and will duly and timely file any such returns required to be filed on or any of its Subsidiaries have been timely filed, and all those prior to the Closing. Such Tax Returns and other information filed are true(and, correct to the extent they will be filed prior to the Closing, will be) complete and complete accurate in all material respects. Neither the Company nor the Subsidiaries have pending any request for an extension of time within which to file federal, state or local income Tax Returns.
(b) All Taxes of the Company and the Subsidiaries in respect of periods (or portions thereof) ending at or prior to the Closing have been paid by the Company and the Subsidiaries or such Taxes (other than income Taxes) are shown as due and payable after the Closing on the Financial Statements in accordance with GAAP.
(c) All No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any material Taxes owed by Clearwire and its or material Tax Returns of the Company or any of the Subsidiaries. Neither the Company nor any of the Subsidiaries has received a written notice of any such pending audits or proceedings. There are no outstanding waivers extending the statutory period of limitation relating to the payment of Taxes due from the Company or any of the Subsidiaries.
(d) Neither the IRS nor any other taxing authority (whether domestic or not shown on foreign) has asserted in writing, or to the best Knowledge of the Company and the Subsidiaries, is threatening to assert, against the Company or any Tax Returnof the Subsidiaries any material deficiency or material claim for Taxes in excess of the reserves established therefor.
(e) have been paidThere are no Liens for Taxes upon any property or assets of the Company or any of the Subsidiaries, except for those Liens for Taxes not yet due and payable and liens for Taxes that are being contested in good faith by appropriate proceedings as set forth on Schedule 3.20(e) and for as to which adequate reserves have been established in Clearwire’s Financial Statements. Except for Taxes that may arise solely as result of actions or transactions following accordance with GAAP.
(f) Neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its the Subsidiaries has incurred any liability (whether obligation under any Tax sharing agreement or not due) for material Taxes since the date of the most recent balance sheet included in the Clearwire Financial Statements similar arrangement with any other than in the ordinary course of business.
(d) Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Person with respect to Taxes of Clearwire or any of its Subsidiaries. Except as disclosed in Section 6.7(d) of the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any such other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material TaxesPerson.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries have withheld and paid over to the relevant Taxing Authorities all Taxes required to have been withheld and paid in connection with payments to employees, independent contractors, creditors, shareholders or other third parties.
(g) Neither Clearwire nor any of its Subsidiaries has entered into, or otherwise participated (directly or indirectly) in, any “listed transaction”, or any reportable transaction the principal purpose of which was tax avoidance, within the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penalty.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception of any indebtedness issued by Clearwire between the Execution Date and the Closing in accordance with Sections 10.1(b)(iv)(F) or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D).
Appears in 1 contract
Samples: Purchase Agreement (American Real Estate Partners L P)
Tax. (a) None of the assets of Clearwire or any of its Subsidiaries is subject to any material Encumbrance for Taxes17.1 All Tax returns, except for liens for Taxes not yet due estimates, information statements, reports, declarations, and payable.
(b) All material Tax Returns required to be other filings have been duly filed by Clearwire or any the Company and the Subsidiary in accordance with the relevant provisions of its Subsidiaries have been timely filedApplicable Law, and all those with the appropriate Tax authorities (collectively, “Tax Returns”). Such Tax Returns are true, true and correct and complete in all material respects and have been completed in SHARE PURCHASE AND SHAREHOLDERS’ AGREEMENT E-STAMP PAPER #: SUBIN-KAKACRSFL0897652837512029O EXECUTION COPY accordance with Applicable Law in all respects.
(c) All material . The Company and the Subsidiary have paid all Taxes owed by Clearwire due and its Subsidiaries payable (whether or not shown on any Tax Return) Returns), have complied with all Applicable Laws in relation to transfer pricing, and have maintained all relevant documentation in relation to Tax compliance (including applicable transfer pricing documentation).
17.2 There is no Tax deficiency outstanding or assessed or proposed against the Company and/or the Subsidiary, nor has either the Company of the Subsidiary extended the period for the assessment or collection of any Tax. No adjustment relating to any Tax returns filed by the Company and the Subsidiary has been paidproposed by any Tax authority to the Company and/or the Subsidiary, except for those Taxes being contested in good faith and for which adequate reserves have been established in Clearwire’s Financial Statementsor any representatives thereof. Except for Taxes that may arise solely as result of actions or transactions following Neither the Execution Date permitted by this Agreement, neither Clearwire Company nor any of its Subsidiaries the Subsidiary has incurred any liability (whether for any unpaid Taxes which has not been accounted for or not due) for material Taxes since the date of the most recent balance sheet included reserved in the Clearwire Financial Statements other than in the ordinary course of businessits respective accounts.
(d) Except as disclosed in Section 6.7(d) of 17.3 The Company and the Clearwire Disclosure Schedule, there is no currently pending audit or administrative or judicial proceeding Subsidiary have withheld with respect to their respective employees and all other Third Parties, all applicable Taxes required to be withheld under Applicable Law and have made payment of Clearwire or any of its Subsidiariessuch Taxes to the appropriate authorities within the due dates thereof. Except as disclosed in Section 6.7(d) of The Company and the Clearwire Disclosure Schedule, neither Clearwire nor any of its Subsidiaries (i) is a party to or bound by any material closing agreement, offer in compromise, gain recognition agreement or any other agreement with any Taxing Authority or any Tax indemnity or Tax sharing agreement with any person, or (ii) has entered into any waivers or extensions of the statute of limitations with respect to material Taxes.
(e) Clearwire has no Knowledge of any proposed or threatened Tax claims or assessments with respect to Clearwire or any of its Subsidiaries that, if upheld, would, individually or in the aggregate, reasonably be expected to have a Clearwire Material Adverse Effect.
(f) Except as disclosed in Section 6.7(f) of the Clearwire Disclosure Schedule, Clearwire and each of its Subsidiaries Subsidiary have withheld and paid over for appropriate contributions to the relevant Taxing Authorities all Taxes provident fund, superannuation, gratuity, employee state insurance and any other contributions, each as required to have been withheld and paid in connection with payments to employeesby Applicable Law.
17.4 There is no Tax deficiency outstanding or assessed or proposed against the Company and/or the Subsidiary, independent contractors, creditors, shareholders nor has the Company or the Subsidiary extended the period for the assessment or collection of any Tax. No audit or other third parties.
(g) Neither Clearwire examination of any Tax Return of the Company or the Subsidiary by any Tax authority is presently in progress, nor has the Company or the Subsidiary been notified of any of its Subsidiaries request for such an audit or other examination. No adjustment relating to any Tax Returns filed by the Company and/or the Subsidiary has entered into, been proposed by any appropriate authority to the Company or otherwise participated (directly or indirectly) in, any “listed transaction”the Subsidiary, or any reportable transaction representative thereof. Neither the principal purpose of Company nor the Subsidiary has any liability for any unpaid Taxes which was tax avoidance, within has not been accounted for or reserved in the meaning of Sections 6011, 6111 or 6112 of the Code and the Treasury Regulations thereunder or has received a written opinion from a tax advisor that was intended to provide protection against a tax penaltyrelevant Accounts.
(h) Except as set forth in Section 6.7(h) of the Clearwire Disclosure Schedule, each Subsidiary of Clearwire is either (x) treated as a partnership 17.5 No audit or (y) disregarded as an entity separate from its owner, for U.S. federal income tax purposes. No action has been taken by Clearwire or any of its Affiliates to treat NewCo LLC or its Subsidiaries (including Clearwire Sub LLC) other than as described in Section 1.1(b), Section 1.1(c) and this Section 6.7(h).
(i) Except as set forth in Section 6.7(i) of the Clearwire Disclosure Schedule, the Merger and other transactions contemplated by Articles 2, 3 and 4 of this Agreement will not result in the recognition by NewCo or any of its Subsidiaries of income or gain under Section 1502 of the Code and the Regulations thereunder (or any comparable provision under state or local income Tax law) or, to the Knowledge of Clearwire, any other material items of income or Tax (“Clearwire Transaction Tax Items”). For the avoidance of doubt, Clearwire Transaction Tax Items shall not include any items of income or gain of Sprint or any of its Subsidiaries (including any income or gain of Subsidiaries of Sprint that become Subsidiaries of NewCo in the LLC Contribution).
(j) Section 6.7(j) of the Clearwire Disclosure sets forth, in all material respects, the information concerning any limitations on the ability of NewCo to utilize the net operating losses of Clearwire for U.S. federal income Tax purposes following the Merger.
(k) Any liabilities of Clearwire, with the possible exception examination of any indebtedness issued Tax Return by Clearwire between any Tax authority is presently in progress, nor has the Execution Date and Company or the Closing in accordance with Sections 10.1(b)(iv)(F) Subsidiary been notified of any request for such an audit or 10.1(b)(iv)(H) of this Agreement, deemed for U.S. federal income tax purposes to be assumed by NewCo LLC in connection with the transactions described in Articles 3 and 4 hereof will constitute “qualified liabilities” as defined in Treasury Regulation Section 1.707-5(a)(6)(i)(D)other examination.
Appears in 1 contract
Samples: Share Purchase and Shareholders’ Agreement (Kaleyra, Inc.)
