FORCE.
ALL ELECTIONS WITH RESPECT TO TAXES
AFFECTING THE COMPANY THAT WERE NOT MADE IN THE DELIVERED TAX RETURNS ARE
DESCRIBED IN SCHEDULE 4.9.
(D)
SET FORTH IN SCHEDULE 4.9 ARE THE NET
OPERATING LOSS, NET CAPITAL LOSS, CREDIT, MINIMUM TAX, CHARITABLE CONTRIBUTION,
AND OTHER TAX CARRYFORWARDS (BY TYPE OF CARRYFORWARD AND EXPIRATION DATE, IF
ANY) OF THE COMPANY.
(E)
THE COMPANY AND EACH PREDECESSOR ENTITY HAS
WITHHELD AND PAID ALL TAXES REQUIRED TO HAVE BEEN WITHHELD AND PAID IN
CONNECTION WITH AMOUNTS PAID OR OWING TO ANY EMPLOYEE, INDEPENDENT CONTRACTOR,
CREDITOR, STOCKHOLDER, OR OTHER THIRD PARTY.
(F)
TO THE COMPANY'S KNOWLEDGE, ALL PERSONS
WHO HAVE PURCHASED SHARES OF THE COMPANY'S STOCK THAT AT THE TIME OF SUCH
PURCHASE WERE SUBJECT TO A SUBSTANTIAL RISK OF FORFEITURE UNDER SECTION 83 OF
THE IRC HAVE TIMELY FILED ELECTIONS UNDER SECTION 83(B) OF THE IRC AND ANY
ANALOGOUS PROVISIONS OF APPLICABLE STATE AND LOCAL TAX LAWS.
(G)
THERE ARE NO ENCUMBRANCES FOR TAXES (OTHER
THAN FOR CURRENT TAXES NOT YET DUE AND PAYABLE) ON ANY OF THE ASSETS OF THE
COMPANY OR ANY OF THE COMPANY'S CAPITAL STOCK.
(H)
THE COMPANY IS NOT AND HAS NEVER BEEN AN
S CORPORATION FOR FEDERAL OR ANY STATE INCOME TAX PURPOSES.
13
(I)
THE COMPANY HAS NOT CONSENTED AT ANY
TIME UNDER FORMER IRC §341(F)(1) (OR COMPARABLE PROVISIONS OF STATE, LOCAL OR
FOREIGN LAW) TO HAVE THE PROVISIONS OF FORMER IRC §341(F)(2) APPLY TO ANY
DISPOSITION OF ANY OF ITS ASSETS.
(J)
THE COMPANY HAS NOT AGREED AND WILL NOT
BE REQUIRED TO MAKE ANY ADJUSTMENT UNDER IRC §481(A) (OR COMPARABLE PROVISIONS
OF STATE, LOCAL OR FOREIGN LAW) BY REASON OF A CHANGE IN ACCOUNTING METHOD OR
OTHERWISE OCCURRING PRIOR TO THE CLOSING DATE FOR ANY PERIOD ENDING ON OR AFTER
THE CLOSING DATE.
(K)
THE COMPANY 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 IRC
§162 OR §280G.
(L)
THE COMPANY IS NOT AND HAS NEVER BEEN A
UNITED STATES REAL PROPERTY HOLDING CORPORATION WITHIN THE MEANING OF IRC
§897(C)(2).
(M)
THE COMPANY DOES NOT HAVE A PERMANENT
ESTABLISHMENT IN ANY COUNTRY WITH WHICH THE UNITED STATES OF AMERICA HAS A
RELEVANT TAX TREATY, AS DEFINED IN SUCH RELEVANT TAX TREATY, AND DOES NOT
OTHERWISE OPERATE OR CONDUCT BUSINESS THROUGH ANY BRANCH IN ANY COUNTRY OTHER
THAN THE UNITED STATES.
(N)
THE COMPANY IS NOT AND HAS NOT AT ANY TIME,
BEEN A MEMBER OF AN AFFILIATED GROUP OF CORPORATIONS WITHIN THE MEANING OF IRC
§1504 OR ANY GROUP THAT HAS FILED A COMBINED, CONSOLIDATED OR UNITARY TAX
RETURN.
THE COMPANY HAS NO LIABILITY FOR THE TAXES OF ANY PERSON (OTHER THAN
THE COMPANY) (I) UNDER TREASURY REGULATIONS §1.1502-6 (OR ANY SIMILAR PROVISION
OF STATE, LOCAL OR FOREIGN LAW), (II) AS A TRANSFEREE OR SUCCESSOR, (III) BY
CONTRACT, OR (IV) OTHERWISE.
(O)
THERE IS NOT AND HAS NEVER BEEN