|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
all material respects. The Company and its Subsidiaries have paid all material Taxes required to be paid by them (whether or not shown or required to be shown on any Tax Return), other than Taxes that have been adequately reserved for in accordance with GAAP.
(b) Each of the Company and its Subsidiaries has complied in all material respects with all applicable Laws relating to the payment and withholding of material Taxes and all material Taxes which it is obligated to withhold from amounts owing to any employee, creditor or third party have been fully and timely paid or properly accrued.
(c) There is currently no material dispute or claim concerning any Tax liability of the Company or any of its Subsidiaries claimed or raised by any Governmental Authority of which the Company has received written notice. Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of material Taxes beyond the date hereof or agreed to any extension of time beyond the date hereof with respect to a material Tax assessment or deficiency.
(d) No claim has been made in writing by a Governmental Authority in a jurisdiction where neither the Company nor any of its Subsidiaries files Tax Returns such that the Company or any of its Subsidiaries is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction. No Liens for Taxes exist with respect to any assets or properties of the Company or any Subsidiary, other than Permitted Liens.
(e) The Company (i) for its taxable years ending December 31, 2016 and December 31, 2017 has qualified to be taxed as a REIT for U.S. federal income tax purposes; (ii) has operated since January 1, 2018 to the date of this Agreement in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner as to qualify as a REIT through the Closing Date; and (iv) has not taken or omitted to take any action that could reasonably be expected to result in a challenge by the IRS to the Companys status as a REIT, and to the Knowledge of the Company, no such challenge is pending or threatened.
(f) Neither the Company nor any of its Subsidiaries (i) is, or has been, a party to any tax sharing, allocation, indemnity or similar agreement or arrangement (other than (x) an agreement exclusively between or among the Company and its Subsidiaries or among the Subsidiaries or (y) written commercial agreements entered into in the ordinary course of business, the primary purpose of which do not relate to Taxes) pursuant to which it will have any obligation to make any payments for Taxes after the Effective Time, (ii) has been a member of an affiliated group filing a consolidated U.S. federal income Tax Return or other similar combined, consolidated, or unitary Tax group (other than a group the common parent of which was the Company or its predecessor or any of its Subsidiaries), or (iii) has any liability for the payment of any Tax imposed on any person (other than the Company or its predecessor or any of its Subsidiaries) under Treasury Regulations 1.1502-6 or any similar provision of state, local or foreign Law, or as a transferee or successor, by contract or otherwise.
(g) Each Subsidiary of the Company is treated for U.S. federal income Tax purposes as (i) a partnership or a disregarded entity and not as a corporation or an association or publicly traded partnership taxable as a corporation, (ii) a qualified REIT subsidiary within the meaning of Section 856(i)(2) of the Code (Qualified REIT Subsidiary), (iii) a taxable REIT subsidiary within the meaning of Section 856(1) of the Code (Taxable REIT Subsidiary), or (iv) a REIT.
(h) Neither the Company nor any of its Subsidiaries participates or has participated in a listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b).
(i) Neither the Company nor any of its Subsidiaries has been a controlled corporation or a distributing corporation (or, in each case, a predecessor or successor thereof within the meaning of Treasury Regulations Section 1.337(d)-7T(f)(2)) in any distribution of stock qualifying for tax-free treatment under Section 355 of the Code at any time since December 7, 2015.
(j) Neither the Company nor any of its Subsidiaries has entered into any closing agreement under Section 7121 of the Code, or other agreement with a Governmental Authority in respect of material Taxes